Author’s Note: Language used in this piece such as “homosexual” or “gays,” amongst other examples, is not used with normative bias: It mirrors legislation and jurisprudence and is used in an effort to achieve maximum clarity for the reader and parity with the subject matter addressed.
“IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS.”
A quotation from Marbury v. Madison, now engraved into the wall of the Supreme Court of the United States.
Anyone living above ground in the United States has seen the news that the Supreme Court issued a ruling on Friday that recognized the fundamental right of same-sex couples to marry. The case, Obergefell v. Hodges, represented the apex of the Court’s treatment of this question, the conclusion of nearly thirty years of gay-rights litigation. Justice Anthony Kennedy authored the majority opinion in this case, as he has in each of the three prior cases that established protections for homosexuals. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the 5-4 majority, while Chief Justice Roberts and Justices Scalia, Thomas, and Alito each authored their own dissents.
A cursory summary of prior cases is important in understanding the history of gay rights at the Court. In Romer v. Evans (1996), Kennedy invalidated Colorado’s constitutional amendment to bar municipalities from protecting gays from discrimination. In Lawrence v. Texas (2003), Kennedy held that an anti-homosexual sodomy law in Texas was a violation of privacy, and therefore unconstitutional. And in Windsor v. U.S. (2013), the Defense of Marriage Act was ruled unconstitutional. If there is one government individual that should be associated with the advance of gay rights, it is Tony Kennedy. In each case, his vote and views carried the Court for gay rights. His authorship of this opinion, much like the outcome of the case, is unsurprising to many who follow the Court.
In Obergefell, the Court was asked to address two questions. The first: Does the Constitution require that states issue marriage licenses to same-sex couples? And the second: Does the Constitution require that states recognize same-sex marriages lawfully performed in other states? By answering the first affirmatively, the Court found that the second question necessarily followed in the affirmative. Much of Justice Kennedy’s opinion focused on the dignity conferred by marriage, bolstered by the societal and governmental benefits that come with that status.
Cathartic in diction, Kennedy’s opinion speaks of the fear of loneliness that the deprivation of marriage creates—that same-sex couples are forced to live in conditions of uncertainty and tumult that heterosexual couples would not willfully endure. Same-sex couples’ desire to be married represents a fundamental desire to contribute to that institution, and in no way degrades it, Kennedy writes. The majority holds that equal protection under the Fourteenth Amendment requires that the Court find a fundamental right to marriage regardless of sex. To rule against gay marriage in this case would be to deny this fundamental right, an act Kennedy cannot support.
I pause now only to remark that I fully support the LGBT movement. However, as explained below, the Court’s ruling errs in its interpretation of the laws and its own role in our democratic system. Such errors cannot be supported, regardless of the merits or morality of the case in question. The Court must say what the law is, and only what it is, not what it ought to be.
Chief Justice John Roberts dissented in Obergefell. In his dissent, and in those of his fellow dissenters, lies the fatal legal error of the majority. Nowhere in the Constitution does marriage appear. Nowhere in the Constitution does sexuality appear. Nowhere has the Court held a right to marry. These three conclusions require that the Court rule no to the first question presented to them: Nowhere in the Constitution, or jurisprudence, does there lie a fundamental right to same-sex marriage. It is the duty of the Court to say what the law is, free from moralizing, subjectivity, or opinion. The majority uses all three.
Supporters of the majority, like Justice Kennedy, lean on cases like Loving v. Virginia, which found that bans on interracial marriage are unconstitutional, or Lawrence, the case regarding sodomy. But neither of these cases earnestly supports the claims to a fundamental right to gay marriage. Loving is a case involving racial inequality, a subject the Constitution expressly addresses and tries to eliminate in the Thirteenth, Fourteenth, and Fifteenth Amendments. Lawrence, like cases involving abortion and contraception, involve privacy—marriage is the exact opposite of privacy. Privacy is the freedom from government intrusion: The government publicly recognizes, sanctions, and confers benefits in marriage—hardly freedom from intrusion.
Beyond criticisms of the majority’s lack of precedent to support its findings, there are other, more serious and potentially expansive concerns all Americans should have about Justice Kennedy’s opinion. The Court, in finding a fundamental right to gay marriage, removes the issue from public consideration. The democratic discourse on the issue of equality is over, put to death by five lawyers, four of whom graduated from Harvard Law, the fifth, Yale; the vox populi substituted for the vox quinque–the voice of the five. If any court were adept to hear this case, it would be the court of public opinion, not a panel of mostly geriatric appellate attorneys.
The Constitution was drafted in the manner it was to remove certain issues from the reach of democratic whimsy. Fundamental rights and responsibilities are codified in that bedrock document, and its subsequent amendments, to ensure that our democracy does not run astray from the eternal principles of life, liberty, and the pursuit of happiness. All areas not addressed by the Constitution are for the people to decide, aided at times by the Court’s guidance, and less frequently, correction. This is not to claim that the Constitution must be read literally. Rather, extrapolations of that document’s terms must be in concert with the context and intent of its authors. Each time that the Court considers a case that asks to find something to be “fundamental,” it is asked to place the issue at hand beyond the reach of the people, in that pantheon of rights that harkens back to the revolution. Each time that the Court does just that, it chips away at the power possessed by the American people, chips away at the democratic principles that compelled the dissolution of our bonds to our colonial masters, chips away at the liberties it has sworn to uphold.
There have been few examples of democracy-in-action that are as impressive as the gay-rights movement. Over the past forty-odd years, queer individuals in this country have gone from a shamed and invisible caste to equal participants in government, commerce, and culture. The Court’s decision ends gay-rights advocates’ fight for marriage equality and robs them of true equality: Equality under law is worthless if society does not support the law. Millions of Americans were robbed of their right to make their voices heard on this issue at the polls, and millions of gay Americans were robbed of true equity in society, as we can never know the outcome of the now-dead democratic struggle for recognition.
Much like Roe v. Wade, the Court’s ruling will spawn countless opposition groups dedicated to chipping away at the Court’s heavy-handed legislation. Such opposition will likely last decades and perpetuate feelings of inequality and shame amongst the LGBT community. This opposition could have been avoided through the democratic process of persuasion, bolstered by a rising tide of support that has been cut short by this ruling. The victory rightfully claimed by those advocating for equality will be a hollow one.
What is more, the Court’s ruling vilifies those on the other side of this debate: Those with principled opposition to a now “fundamental right” risk being labeled bigots and all the potential social and personal implications associated therewith, their opinions reserved for hushed dinner-table conversations amongst like-minded confidants. It is also worth noting the inherent hubris behind the discovery of a “fundamental right:” Were Justices Brandies, Holmes, Jackson, and Warren too stupid to see this supposedly “fundamental” right? Hardly. An invention cannot be fundamental, and that is exactly what the majority’s holding is.
The most tragic aspect of this ruling is that it need not be tragic, an irony in itself. Had the Court held that states must recognize marriages performed outside their own borders, the Court would have effected the same change. Certainly there would be some partnerships without the means to travel to one of the thirteen States that had previously passed legislation authorizing same-sex marriage, however the net effect would be an exodus of gay couples making the journey to be married, and then returning home to find themselves guaranteed to all of the rights granted by their home State. Such a ruling avoids infringing upon the democratic rights of Americans everywhere—states are free to pass bans on same sex marriages within their borders, but California and New York are great places for weddings regardless of orientation—and does not create bigots out of principled citizens. Instead, the Court has drawn undue attention to itself and imperiled its integrity: the Court, wielding neither sword nor purse, is only as powerful as the American people allow it to be. It is rulings like Obergefell that inspire animus towards the Court and endanger its place in our government.
The Court in Obergefell acts with the best of intentions. But the means do not justify the ends in this case. The Court robs same-sex marriage advocates of a true victory. It robs same-sex couples of honest support and social approbation. It robs the American people of their most critical right to be heard on issues of grave import. And it robs dissenters of the dignity of democratic defeat and the consolation that comes from knowing that their views were heard in the marketplace of ideas. I, like millions of Americans, eagerly awaited the day that I could vote to support marriage equality. That day will never come: the Court killed the goose that lays the golden egg: gay marriage is now legal across the nation, but the dignity, equality, and pride that marriage bears cannot be mandated by any court. Only through the democratic process—the persuasion of their fellow citizens—could gays achieve full equality. They have been denied that opportunity by the Court, their equality exchanged for tax credits and visitation rights. Such a trade I cannot support.
I respectfully dissent.
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