Hardly Hollow

 /  July 6, 2015, 10:01 p.m.


Dan Simon, in his recent piece “A Hollow Victory,” makes two claims regarding the Supreme Court's recent decision in Obergefell v. Hodges: that the Court erred in judgment, and that it overstepped its constitutional mandate. The arguments presented for each are deeply flawed.

First, regarding the chain of logic he presents to demonstrate error in the majority’s judgement, he writes, “Nowhere has the Court held a right to marry.” This claim is patently false:  Both sides of the same-sex marriage debate acknowledge a Constitutional right to marriage. Justice Kennedy, in the majority opinion, writes, “the Court has long held the right to marry is protected by the Constitution.” Likewise, Chief Justice Roberts, in his dissent, writes, “There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally.”

While the Supreme Court has recognized a right to marriage, it has been under the assumption that this right was only applicable to opposite-sex marriage. The question at hand in Obergefell, then, was whether that right should extend to same-sex marriage. I find Justice Kennedy’s opinion highly persuasive in answering that question, but for the sake of brevity, I will only address the arguments Simon made against extending the right to marriage.

His main piece of evidence is the fact that the Court has never before extended such a right, and therefore no such right exists. He writes, “Nowhere in the Constitution, or jurisprudence, does there lie a fundamental right to same-sex marriage.” Of course it didn’t exist—this case wouldn’t have been terribly exciting if it did. Before Loving v. Virginia, there was no right to interracial marriage, and that was wrong. Likewise, before Obergefell, there existed no right to same-sex marriage, and that was wrong. Simon asks if Justices Brandeis, Holmes, Jackson, and Warren were too stupid to recognize this right. This constitutes no more evidence of stupidity than does those justices’ failure to recognize the rights later guaranteed in Loving, Brown, or Lawrence, which deemed anti-sodomy laws unconstitutional. It’s impossible to condemn Obergefell on such grounds without doing the same to each of these rights, and a host of others we now take to be pillars of liberty, because all of these cases are recognizing new rights. With regard to the propriety of the Court to recognize new rights, Justice Kennedy offers an eloquent explanation in the majority opinion:

“The nature of injustices is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and Fourteenth Amendment did not presume to know the extent of freedom in all its dimensions, so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Simon, continuing his argument against Kennedy’s judgement, writes that neither Loving nor Lawrence, “support[s] the claim to a fundamental right to gay marriage.” To support this, he points out that Loving had to do with race, and Lawrence privacy. This would be a problem if Justice Kennedy had tried to use the cases to assert a right to same-sex marriage. Instead, he used these cases, along with a score of others, to illustrate the ways in which the Due Process Clause and Equal Protection Clause guarantee fundamental rights. It’s not that Loving and Lawrence led to a fundamental right to same-sex-marriage, as Simon implies, but that the same parts of the Constitution that led to the Court's decisions in those cases also guarantee a right to same-sex marriage. Despite Simon’s suggestion otherwise, the Constitution, famously, never mentions privacy, nor does the Fourteenth Amendment mention race. Consider Justice Warren’s opinion from Loving: “To deny this fundamental freedom on so supportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” As Justice Warren points out, the principle of equality before the law, not race, is at the heart of the Fourteenth Amendment. Race, just as sexual orientation, simply happens to be a way in which this principle can be violated.

The second argument that Simon makes, that the Court has overstepped its constitutional limitations, is more worrying. The Supreme Court serves its most noble function when it prevents the majority from abusing a minority. Justice James Iredell, an inaugural member of the Court, wrote that if there is “no check upon the public passions, [individual liberty] is in the greatest danger. The majority having the rule in their own hands, may take care of themselves; but in what condition are the minority, if the power of the other is without limit.” The most important opinions the Court has ever issued, opinions that have withstood the test of time and now receive near universal acclaim, all “short-circuited democracy.” Brown, Miranda, Griswold, and, as Simon approves of in his piece, Loving and Lawrence. In all of these cases, a group of unelected lawyers prevented the majority from abusing its power, and I thank God that we live in a system that allows them to do so. It is one thing to disagree with the Court for finding there to be a constitutional right to same-sex marriage, although I think it wrong. It is not, however, a fault in our system for the Supreme Court to assert that right once it has been declared. Simon writes scornfully of an unelected court asserting recognition of a new right; I would fear for a society in which such a court did not exist, and our individual rights and liberties were instead left to the judgement of the court of public opinion he speaks so highly of.  A majority in many states abused their power to deny a fundamental right to their citizens; it is truly a wonderful thing that our system can correct that.

The Court's decision is Obergefell was no hollow victory; it is a victory of the highest order for our system of governance. It proves that in our country, when a minority suffers at the hands of the majority, they have hope for redress.

The image featured in this article depicts the Supreme Court on the morning of the Obergefell arguments in April.  The original image can be found on Ted Eytan's flickr page

Luke Wetterstrom


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