An Analysis of the Supreme Court's Gay Marriage Decision, Part 2

Read Part 1.

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:1

  • individual autonomy and liberty
  • a two-person union is important to individuals
  • it safeguards children and families
  • it safeguards social order

These arguments, and the dissenting opinion, are analyzed below.

Pillar #1 – Individual Autonomy and Liberty

Justice Kennedy’s argument on this point is remarkable because it is not a legal argument at all; he simply made blanket statements as though they were brute facts. “The right to personal choice regarding marriage is inherent in the concept of individual autonomy.”2 His entire argument here, which quite literally consists of three short paragraphs, is that people must be allowed to do what makes them happy. He makes it a point to use the word “freedom,” possibly to establish a subtle link to the concept of “liberty” from the text of the 14th Amendment:

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.3

The question is, Who gets to determine whether a given construct of “happiness” is socially acceptable? Kennedy anticipates this objection and has no answer. He merely states, “There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”4 The Court has decreed that homosexual relationships are dignified, therefore they are. Kennedy does not explain why this is a dignified pursuit and provides no legal rationale for supposing it is one. As Chief Justice Roberts observed, the Court’s decision is a more of a policy statement than a legal document.

Roberts tore into this “freewheeling notion of individual autonomy.”5 The Court’s position on this is smoke and mirrors, a rhetorical gloss with no legal substance. The Court’s decision is nothing more than a statement of moral philosophy, a naked quest for policy preferences. He marveled that “nobody could rightly accuse the majority of taking a careful approach.”6

The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to”7

Roberts’ issue is that no legal argument was actually presented for the redefinition of marriage. No “right to marry” case ever heard before the Court, whether it concerned inter-racial couples, individuals with child-support debts, or incarcerated prisoners,8 has ever re-defined the institution itself. Every “right to marry” case presupposed the traditional definition of marriage. To Roberts, this is the death blow to the Court’s majority opinion. “None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman.”9

Thus, there is simply no legal precedent for the sweeping claim to personal autonomy championed by the Court. The personal accounts of the homosexual petitioners were “compelling,” Roberts admitted. “As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.”10 There is simply no legal basis for a constitutional right to redefine the entire institution of marriage in the name of individual autonomy. “None exists, and that is enough to foreclose their claim.”11

Pillar #2 – a Two-Person Union is Important to Individuals:

Kennedy continues his quest for individual autonomy; “this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”12 In essence, Kennedy’s argument here is as follows:

  • Homosexual marriage is important to the petitioners,
  • To deny what is important to the petitioners infringes upon liberty and autonomy
  • To infringe upon personal liberty and autonomy violates the “due-process” clause of the 14th Amendment
  • Therefore homosexual marriage must be sanctioned
  • Couples wish to define themselves by their commitment to each other, and homosexual couples are entitled to the “right to marry” because this is how they define reality.

Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.13

It is not enough to merely de-criminalize homosexual acts, as the Court did in the case of Lawrence v. Texas; Kennedy believes homosexual couples are entitled to the “full promise of liberty.”14 That full promise means legally sanctioned marriage, because it’s what makes them happy.

Pillar #3 – It Safeguards Children and Families

This is the pillar which will probably surprise Christians. What basis does the Court have to rule that legalizing same-sex marriages actually safeguards children and families? Kennedy offers a handful of reasons:

  • By granting official recognition and legal standing to homosexual parents, their children can now “understand the integrity and closeness” of their family.15
  • This recognition offers “permanency and stability important to children’s best interests.”16
  • If their homosexual “parents” are not allowed to marry, “their children suffer the stigma of knowing their families are somehow lesser.”17
  • Likewise, such children will suffer “significant material costs” because of a “difficult and uncertain family life.”18

Kennedy hangs his hat on a quote from Zablocki v. Redhail, which stated, “[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.”19 Kennedy chose a particularly flimsy hook to hang his judicial hat on. Here is the argument:20

  • Homosexual couples exist
  • They already establish homes
  • They already adopt and raise children
  • Because the right to marry, establish a home, and bring up children have each been considered as a “unified whole,”21 the Court therefore has precedent to extend the “right to marry” to homosexual couples.

This weak and vacuous argument goes far beyond special pleading. Kennedy betrays a pitiful willingness to grasp at any straw, any legal precedent—no matter how tenuous the link is. The Court actually advanced the argument that (1) because homosexual couples already establish homes, and (2) already adopt and raise children, that (3) they should be granted the “right to marry” because these three privileges have been interpreted as being part of a “unified whole” in previous “right to marry” court decisions! The Court missed Roberts’ entire point—no “right to marry” case has ever sought to re-define the institution itself!

Again, the reader is left with the impression that this is not a legal document; it is a poor man’s attempt at moral philosophy. In that light, Roberts’ warnings about judicial overreach are particularly relevant:

Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.22

Pillar #4 – Marriage Maintains Social Order

If a society does not pledge to both protect and support married couples, then a critical “building block of our national community”23 is threatened. If American society withholds formal legal status from same-sex couples, they are “denied the constellation of benefits that the States have linked to marriage.”24 Basically, society harms homosexual couples by withholding that right from them. By harming them, society thereby damages itself.

Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.25

The Court is well aware of Roberts’ objection—no previous “right to marry” case ever sought to re-define the meaning of the institution itself. That, Kennedy argued, is missing the point. The question is not, “Do they have the right to marry?” The question is, “Why don’t they have the right to marry?”26 This brings us full circle to the historical argument for traditional marriage, which Kennedy brushes aside with breath-taking arrogance. Definitions change, society changes, and “rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”27

In the end, Kennedy is a good secularist who believes that morality is a shifting target. He personally feels homosexual couples are being denied a fundamental right and “it would disparage their choices and diminish their personhood to deny them this right.”28 On that note, Chief Justice Roberts warns us, “allowing unelected federal judges to select which un enumerated rights rank as ‘fundamental’—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role.”29

These four pillars are the sum of the Court’s legal opinion. Kennedy summarized as follows:

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality…. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.30

Conclusion – Moral Revolution?

The Court’s decision on 26JUN15 has only raised more questions.

An Activist Court

There is no doubt that the Court has bought into a purely secular view of morality, which fueled its activist stance in this case. The Court acted out of what it perceived to be a moral duty, one that could not afford to wait for the democratic process. Chief Justice Roberts was horrified at the Court’s activist stance in this case, especially the cavalier way it simply brushed aside the definition of marriage a millennia in the making. While Kennedy points to referenda, legislative debates, grassroots campaigns, studies, papers, books, and “more than 100 amici31 as proof that this issue has been debated long enough, Roberts couldn’t disagree more about the Court’s “extravagant conception of judicial supremacy.”32

The fact is that five lawyers on the Court personally believed that homosexual marriage is a fundamental right, and ruled accordingly. It was their duty to rule the way they did—justice demanded it. “Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”33

What other activist decision can the American people expect, on the basis of some perceived “moral imperative” from a few lawyers in Washington D.C.? As Roberts observed, “there is indeed a process due the people on issues of this sort—the democratic process.”34

The Legal “Slippery Slope”

Many observers have warned about the “slippery-slope” the Court’s decision has opened up. What about plural marriages? What about polyamory? The Court has slipped badly here, jettisoning all vestiges of tradition and history, “preferring to live only in the heady days of the here and now.”35 Chief Justice Roberts recognized this, and warned:

If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one…. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.36

The petitioner’s counsel betrayed his own moral bankruptcy when he was asked, during oral arguments, whether his position opened the door to plural marriages. Counsel dismissed the idea out of hand by stating that no State had such an institution. Roberts then observed that this was precisely his point—no State at issue in this case had an institution of same sex marriage either, and yet the Petitioner was arguing to force them to adopt one!37

Tax-Exempt Status for Churches and Para-Church Organizations

Chief Justice Roberts wrote, “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”38 This is quite true, and it is rather horrifying to see how little thought or care the Solicitor General had given to this potential landmine at the time of oral arguments. I will let the following exchange from the oral arguments speak for itself:39

Justice Alito: “Well, in the Bob Jones case, the Court held that a college was not entitled tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same­-sex marriage?”

General Verrilli: “You know, I—I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.”

Going forward, the Court’s ruling has created an atmosphere of immense uncertainty among Bible-believing Christians in the United States. It will take the next several years, and likely decades, to appreciate the full impact of this decision. It also brings to mind the old arguments over what the local church’s role is in political life. Is it legitimate to attempt to “impose” Christian values on a secular state? Should Christians continue to try to have a voice in the political arena, or should local churches simply preach the Bible, keep their heads down and “mind their own business”? None of these questions are new, but the Court’s decision has given them a new impetus. All these questions will be debated now, and for years to come because of this decision.


1 “Opinion of the Court,” 12-17.

2 “Opinion of the Court,” 12.

3 “Opinion of the Court,” 13.

4 “Opinion of the Court,” 13.

5 “Dissenting Opinion,” 19.

6 “Dissenting Opinion,” 19.

7 “Dissenting Opinion,” 19.

8 These cases are, respectively, Loving v. Virginia, Zablocki v. Redhail and Turner v. Safley.

9 “Dissenting Opinion,” 16.

10 “Dissenting Opinion,” 15.

11 “Dissenting Opinion,” 17.

12 “Opinion of the Court,” 13.

13 “Opinion of the Court,” 14.

14 “Opinion of the Court,” 14.

15 “Opinion of the Court,” 15.

16 “Opinion of the Court,” 15.

17 “Opinion of the Court,” 15.

18 “Opinion of the Court,” 15.

19 “Opinion of the Court,” 14.

20 It’s worth noting that Kennedy’s legal argument is so vague and badly written that he never actually defends it. He simply states it in an off-hand way in one single sentence before waxing eloquent about the harm being done to children of same-sex couples. His entire legal argument for this pillar is here: “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer, 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: “The right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause,” (“Opinion of the Court, 14).

21 “Opinion of the Court,” 14.

22 “Dissenting Opinion,” 10.

23 “Opinion of the Court,” 16. “For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.”

24 “Opinion of the Court,” 17.

25 “Opinion of the Court,” 17.

26 “Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right,” (“Opinion of the Court,” 18).

27 “Opinion of the Court,” 18-19.

28 “Opinion of the Court,” 19.

29 “Dissenting Opinion,” 11.

30 “Opinion of the Court,” 27.

31 “Opinion of the Court,” 23.

32 “Dissenting Opinion,” 25.

33 “Opinion of the Court,” 24.

34 “Dissenting Opinion, 22.

35 “Dissenting Opinion,” 22.

36 “Dissenting Opinion,” 20.

37 “Dissenting Opinion,” 21.

38 “Dissenting Opinion,” 28.

39 Oral Transcript of 14-556, Question #1, pg. 38. Supreme Court of the United States. Retrieved from 27JUN15.

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There are 4 Comments

G. N. Barkman's picture

Thanks, Tyler, for this excellent analysis.  Very helpful.

G. N. Barkman

Aaron Blumer's picture


Much appreciate your work on this.

What will be the long term results of this decision? Hard to imagine scenarios where there is any good whatsoever. But to my own amazement, I can imagine one. This is pretty optimistic but not impossible...

Consider this: 

  • in the long run, reality has a way of mitigating, if not completely triumphing over, reality-denying idealistic philosophies
  • reality-denying cultural trends usually require a whole of drama to fuel them
  • the meteoric rise of gay marriage in our culture is jam packed with reality-denial... and the drama of a 'civil rights' cause and dreams of 'progress' to fuel it
  • now that it's pretty much law everywhere, gay marriage ... well, it may well become a non-topic relatively soon. It may get pretty boring.
  • as idealistic crusades lose their drama, reality tends to slowly worm its way back into people's thinking

Yes, it's rosy, I know. It may be that the gay rights drama will simply find yet more social fabric to unravel in the name of progress, and the dazzle of civil rights crusading will continue to distract people from very, very obvious realities. But maybe not.

Ours is a weak and decaying culture (or this upheaval could have happened so quickly and easily), like so many others, but that doesn't mean it has to hit bottom by Thursday afternoon. There are still many stubborn bits of common sense that refuse to die... and some that have gone comatose may yet re-awaken.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

Bert Perry's picture apparently that many in the homosexual community, or at least parts of it, are concerned that marriage will indeed end some of the flamboyant things about urban homosexual culture.  As I read it, now that the lobby has achieved the benefits of marriage (inheritances, marriage tax, etc..), they're fessing up and admitting that the stereotypes that many of us used to joke about are at least in part true.  The most interesting one is that some are concerned that it will lead to an end to rampant promiscuity.

It's interesting especially to me because, as a "nerd-American", I know from experience that being part of an oppressed community does not in itself generate tons of chances for fornication--thankfully.  So what is it about this community that leads to this?

Or, put differently, I'm standing by my guess that "same sex mirage" (h/t Doug Wilson) is going to backfire spectacularly on homosexual activists by making some of their behaviors public record.  You could always shout down Paul Cameron and Mark Regnerus, but it's a little tougher to shout down the Census Bureau, the CDC, and the FBI.

Aspiring to be a stick in the mud.

Aaron Blumer's picture


Hadn't really thought of that angle either. There was a Filings post just a few days back  I think on how gay marriage has worked out in Canada. I've been meaning to read that. I'm interested to see some analysis, though Canadian culture is not the same as US culture in many ways.

Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.

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