Same sex marriage ruling affirms individual rights when legislative action is stalled
By Nathaniel Smith, Columnist, The Times
It is well worth downloading the full Obergefell v. Hodges decision at http://www.supremecourt.gov/. The pdf is rather exciting reading. As taxpayers we paid for it, so let’s read it for free!
The 5-4 ruling on both questions before the Court (which it could have separated) is guaranteed to make social conservatives writhe:
Held: 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.
The text starts by reviewing “the history of marriage as a union between two persons of the opposite sex” before moving on to “the governing principles and precedents” of the decision.
That order is poetic justice for those observers who have long felt that the Roberts court has relied on personal attitudes more than on the clear will of Congress and legal precedent–for example, in its horrendous Citizens United decision and its reversal of Section 4 of the Voting Rights Act. In both of those decisions, the majority of justices made their own personal judgments about what made sense to them.
Even Chief Justice Roberts, in his Obergefell dissent, travels the intercultural route (p. 42), terming marriage:
… 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.
This time, the socio-anthropological approach took the Court in the liberal direction; the majority has taken note that society changes over time. What it writes (p. 2) is hard to doubt:
The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential.
That’s from the syllabus, or summary; the full opinion follows the same thought in much more detail. Then Justice Kennedy, writing for the majority, convincingly cites the legal principles and precedents underlying the opinion, intertwined with the personal situations of the plaintiffs and prior action of the states.
At times, the opinion verges on the poetical (p. 21):
…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.
And some passages are eloquent and even moving, notably the conclusion (p. 33):
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The factual statement of the Court’s internal divisions reveals the underlying drama (p. 5):
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
The 5 subscribe to a common ruling, while the 4 seem to be scrambling to outdo each other in their outrage. Perhaps the “originalist” pretense of deciphering exactly what the Founding Fathers intended in every situation in all eternity has now perished.
In fact, the majority specifically gives that pretense a fatal push into the grave (p. 16):
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.
And furthermore (pp. 23-24):
…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.
In recognition of these resounding put-downs, perhaps it is time for Justice Scalia to take off his robes and return to civilian life? He does not at all seem to be enjoying his current job (p. 70):
Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
and (p. 73):
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.
He doesn’t even sound like the same jurist who, as part of the 5-4 majority in Gore. v. Bush, decided the outcome of the 2000 presidential election.
I can see why Scalia is upset. He was out of tune with the country then and now he’s out of tune with his colleagues as well.
The Obergefell opinion, in my humble judgment, will be one of the Court’s most influential and most cited for a long time to come. Parts of it are virtually revolutionary in their invitation for individuals to effect change in our society (p. 29):
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. 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.
This dynamic has been validated in some of the greatest judicial decisions in our history. And the current case is definitely one of them.
