On Friday, June 26 2015, the Supreme Court of the United States issued a landmark ruling about same-sex marriage. Here is what it determined:
The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.1
What does the 14th Amendment to the U.S. Constitution state? Here is Section 1, which is the portion relevant to this discussion:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.2
What exactly did this Supreme Court decision determine? What were the legal arguments both for and against the point at issue? This article will introduce these issues, and Part 2 will present the legal arguments, from both sides, strictly from the court decision itself.
What Was this Case About?
This case was an amalgamation of several individual cases from Michigan, Kentucky, Ohio, and Tennessee—all States which define marriage as a union between one man and one woman. The petitioners were 14 same-sex couples and two men whose same-sex partners are deceased. The respondents were officials from the States in question. The petitioners claim the respondents (i.e. the respective States) violated the 14th Amendment by denying them the right to marry or by not recognizing their same-sex marriages which had been lawfully performed in another State.3
The petitioners argued they were being denied the right to “life, liberty, or property, without due process of law,” and that they were being denied the “equal protection of the laws,” specifically with regard to the legal benefits traditional married couples enjoyed.
What Questions Did the Court Rule On?
Each District Court in each State denied the petitioner’s claims, and dismissed the cases. Each petitioner then appealed to the United States Court of Appeals for the Sixth Circuit, which promptly reversed the District Courts and consolidated all the cases together. The individual States appealed this decision, and the Supreme Court agreed to hear arguments related to two critical questions. These questions are what the Supreme Court decided, and they are:4
- Does the 14th Amendment require a State to license a marriage between two people of the same sex?
- Does the 14th Amendment require a State to recognize a same-sex marriage licensed and performed in a State which does grant that right?
The Supreme Court answered “Yes!” to both questions—a moral evolution so profound that President Obama remarked that it was “justice that arrive[d] like a thunderbolt!”5 Each State in this country is now (1) required to license same-sex marriages, and (2) required to recognize same-sex marriages from other States.
The Court On Traditional Marriage
There is a worldview issue here which cannot be ignored. Is there an objective definition of marriage to turn to, or are we left with social mores? The Christian turns to God’s revealed word. The secularist turns to the shifting winds of culture. In the majority opinion, Justice Kennedy revealed he has no concrete definition of marriage.6 He acknowledges that supporters of traditional marriage will be horrified at the Court’s decision, but assures us that the respondents do not seek to demean the institution at all—indeed, they seek to honor it:
To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.7
Kennedy went on to state that “new dimensions of freedom become apparent to new generations.”8 It is obvious that Kennedy views the widespread secular acceptance of same-sex marriage with satisfaction, a righteous reversal from a bygone era when homosexuals were not allowed to have “dignity in their own distinct identity” and “a truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”9
In his dissent, Chief Justice Roberts cut right to the heart of the matter; “The real question in these cases is what constitutes ‘marriage,’ or—more precisely—who decides what constitutes ‘marriage’ ”?10 Roberts believed that it is certainly “no historical coincidence”11 that human society, across millennia and across cultures, has always recognized marriage as being a union between one man and one woman. He appears genuinely befuddled by this moral revolution, observing “the premises supporting [the traditional] concept of marriage are so fundamental that they rarely require articulation.”12 He tied marriage to procreation, and observed that it is a basic fact that:
- humans must procreate to survive,
- this procreation occurs when a male and female have sexual intercourse,
- children’s prospects are immeasurably strengthened when the parents form a lasting bond, and
- society has recognized that bond as “marriage.”13
Individual States, Roberts reminded us, always defined marriage in the traditional, biological way until about a dozen years ago.14 He fired back at Kennedy’s statement that marriage is an institution of both “continuity and change” by observing that not one Court decision related to marriage in this country’s history has ever redefined the “core meaning” of the institution itself—until now.15
The Court On Its Role In Society
Is it the Supreme Court’s role to interpret the law as it currently is, or to determine what it ought to be? This was the basic question Chief Justice Roberts asked,16 and it is really the crux of the matter between the two parties on the Court. What is the role of the Court? The democratic process has been thwarted, he warns: “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”17 He believes the Court is confused about its role, and sees no legal grounds for the majority decision. The Court is not a legislative body which enacts policy.18
Roberts believes the Court dangerously overreached on this decision, and most of his ire is directed at this point. Indeed, his entire dissent is not about the validity of same-sex marriage per se; it is about what he believes is a very dangerous overreach of authority by the Court:
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.19
The Court’s rationale for this “overreach” is chilling. Justice Kennedy acknowledged that “democracy is the appropriate process for change.”20 However, “when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision-making.”21 It is the Court’s job, Kennedy believes, to take the fundamental issue of human dignity and rights out of the capricious hands of legislatures, elected officials and majorities, away from the “vicissitudes of political controversy” and establish them as legal precedent.22 In effect, Kennedy believes in an activist Court. Apparently, so does the majority of the U.S. Supreme Court.
This decision makes it clear the Court is deeply divided not only over issues of morality, but over its basic role in American society.
Roberts’ arguments are both laudable and depressing. Laudable in the sense that he points out the absurdity of this wholesale re-definition of a sacred institution:
[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?23
Robert’s dissent is also depressing because it betrays the bankruptcy of secular morality, even “traditional” morality. His entire argument is from history, from the “way things have always been.” He has no positive argument to make beyond the issue of procreation. Like Kennedy, Roberts has no objective standard to turn to. Socially-constructed mores function by inertia; they may endure for a long time, but when the brakes are removed nothing can stop it from moving. It may teeter and wobble a bit in its original position for a time, but it will topple sooner or later. In this country, the God-given definition of marriage has toppled, and conservatives like Roberts who have no objective foundation for morality are left befuddled, frustrated and speechless. Ultimately, Roberts has no answers. All he has is a secular, allegedly “outdated” cultural construct of morality that America in 2015 has left behind.
The Court’s Legal Justification For this Ruling
The Court justified its ruling requiring States to both license and recognize same-sex unions on four pillars. They are:24
- individual autonomy
- a two-person union is important to individuals
- it safeguards children and families
- it safeguards social order
These arguments, and the dissenting opinion, will be analyzed in detail in the next article.
3 “Opinion of the Court,” in Obergefell et al v. Hodges, 2.
4 “Opinion of the Court,” 2-3.
6 “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time,” (“Opinion of the Court,” 6).
7 “Opinion of the Court,” 4.
8 “Opinion of the Court,” 7.
9 “Opinion of the Court,” 7.
10 “Dissenting Opinion,” in Obergefell et al v. Hodges, 4.
11 “Dissenting Opinion,” 4.
12 “Dissenting Opinion,” 5.
13 “Dissenting Opinion,” 5.
14 “Dissenting Opinion,” 6.
15 “Dissenting Opinion,” 8.
16 “But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be,” (“Dissenting Opinion,” 2).
17 “Dissenting Opinion,” 2.
18 “Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not,” (“Dissenting Opinion,” 2).
19 “Dissenting Opinion,” 3.
20 “Opinion of the Court,” 24.
21 “Opinion of the Court,” 24.
22 “The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act,” (“Opinion of the Court,” 24).
23 “Dissenting Opinion,” 3.
24 “Opinion of the Court,” 12-17.