By Cassandra and Petronius
On June 26th, the Supreme Court of the United States ruled that same-sex marriage was a constitutional right. States are now required to recognize same-sex marriages. This decision has been met with great rejoicing by some and with great indignation by others. If you do not understand how the Constitution was used in arriving at this decision – either because you did not feel like reading the 103 page Supreme Court decision or because your high school government class was so long ago – this article is for you. Wherever you stand on the issue, here are 10 facts you should know and 5 things you should do.
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The Court ruled that the right to marry is protected by the Due Process and Equal Protection Clauses of the 14th Amendment. These clauses state: “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.”
The justices holding the majority opinion stated that same-sex couples have a constitutional right to marry because they interpret the Due Process and Equal Protection clauses as guaranteeing certain liberties (Thiis assumption will be addressed by fact 4.). And, in their opinion they state that they believe these liberties are continuously evolving: “…the fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs…. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed” (2015).
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The justices holding the minority opinion asserted that the decision was guided by the other justices’ personal views on marriage, instead of an objective reading of the Constitution, which gives no indication that it is meant to be read as a “living document.” They also pointed out that any changes to our nation’s perception of liberty must be voted on by the people or decided by members of elected legislative bodies, instead of decided “by a select, patrician, highly unrepresentative panel of nine” (Scalia, 2015).
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The majority Justices used legal precedent in their decision since the 14th Amendment had been used in previous judicial cases concerning marriage rights. For example, the 14th Amendment was used to strike down Virginia’s laws prohibiting interracial marriages in the case of Loving v. Virginia in 1967.
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The Due Process clause of the 14th Amendment was originally written as a guarantee to a person accused of crimes to be given “due process” before having his or her “life, liberty, or property” taken away. Justice Thomas asserts in his dissenting opinion that the Due Process clause cannot be used to reach this decision because this clause was developed to prevent rights from being infringed upon, not to create new rights. For example, the Due Process clause was used in resolving the case of Loving vs. VA. Using the clause, the Supreme Court prohibited state governments from criminally charging interracial couples. In other words, the Supreme Court used this clause to prohibit the government from harming these couples – not to order the government to give benefits to these couples.
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The majority justices stated that the Supreme Court has made changes to a developing understanding of marriage in its prior cases on marriage, such as Loving vs. VA. Other cases cited included a case which allowed a man to marry despite the state of Wisconsin’s opposition due to his unfulfilled child support obligations (Zablocki v. Redhail, 1978) and another case (Turner v. Safley, 1987) which permitted inmates to marry without the approval of the prison superintendent. Based on this legal precedent, the majority believed that the court can determine, what they see as, a further extension of the definition of marriage.
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Dissenting Justice Roberts stated that the 14th Amendment was used to change laws governing marriage; it has never before been used to change the definition of marriage. In his dissent, Justice Roberts observed that past cases “did not, however, work any transformation in the core structure of marriage as the union between a man and a woman” (2015). Loving vs. VA still recognized that a marriage exists between a man and woman; it merely prohibited governments from making a marriage between a man and a woman of different races a criminal offense.
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The reason that the majority opinion (and many in society) believe same-sex couples can truly be married is because they often form long-lasting sexual relationships and desire to get married and often to raise children. This belief rests on the assumption that the ability to form a long-lasting romantic relationship and the desire to get married = ability to get married.
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However, Justice Roberts observed that an individual’s desire to get married does not mean that he or she has the constitutional right to do so. For example, two siblings (opposite sex or same-sex) cannot marry. This particular justice (and many others) see the logic governing the justification of same-sex marriage as potentially opening the door for other relationships to be viewed as a “marriage.”
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The majority justices believe that the Constitution is a living document and that it can be interpreted by themselves to define new rights. They feel that their interpretation of liberty is sufficient to determine the law of the land. Many would call this pride…
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All four dissenting justices stated that the primary reason they disagreed with the majority opinion was because it was unconstitutional for the Supreme Court to make this decision for the states. They seemed more concerned about this than about the redefinition of marriage. Justice Roberts stated: “…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. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment” (2015).
Whatever you think about the Supreme Court decision here is what you should do to facilitate dialogue about this contentious Supreme Court decision (yes, there is still going to be a lot of debate in this matter if you haven’t already noticed!).
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Be courteous. The Constitution guarantees you freedom of speech on this issue for the time being. Use it, but use it well and remember – you will not convince anyone of the truth of your position through hateful and angry speech.
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Do not make judgment calls. Conservatives, don’t judge the hearts of anyone in the LGBT community (only God can do that); assume they are sincerely acting according to their personal understanding of the truth. Liberals, don’t assume anyone against same-sex marriage is homophobic or say things along the lines of, “You should meet these people you are judging before you say such hateful things.” Most people – yes, even people against same-sex marriage – know openly gay and lesbian individuals; many people against same-sex marriage even have gay and lesbian friends and family members. Don’t forget that we all live in 21st century America together.
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Know your facts. Buzzfeed, facebook, and hearsay don’t count. Super-judgmental news sources that say things like “God will send these Homosexual Sinners to Hell,” or “All these Conservatives against Marriage Equality are Just as Bad as Racists” don’t count either. (By the way, did you know that the only Black member of the Supreme Court voted against legalizing same-sex marriage. Just saying.)
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Never forget this saying, “I disagree with what you say, but I will defend to the death your right to say it.” Within the past month, I have had some great conversations about same-sex marriage with a few individuals who do not agree with me. Our conversations remained civil because we agreed on the fundamental premise that we have a right to hold and express our own opinions and that persecuting someone for his or her beliefs is fundamentally wrong. The minute anyone disagrees with this premise, he or she becomes intolerant and bigoted. Don’t let that person be you.
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Recognize and speak out against the Supreme Court taking away our constitutional rights by creating new ones based on their personal opinions. Whether or not you agree with this Supreme Court’s ruling on same-sex marriage, you cannot overlook the fact that the judges – by their own admission – decided to redefine an age-old institution based upon their perception of what liberty means. Keep in mind that the next new definition of a “right” coming from the Supreme Court may not be to your liking, even if you agreed with this particular ruling. Justice Alito stated in his dissent: “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims” (2015). Indeed we should be worried; we may soon be ruled by the unhindered opinions of nine Justices, based loosely on their own interpretation of the Constitution.
The court has been inventing “rights” long before this decision and it shows no indication that it will stop anytime soon. Rather than acknowledging the right of our communities and local governments to make decisions for themselves based on their shared values and history, the court has rendered for every American a top-down, blanket approach to the issue. Those who disagree with the decision are going to have to learn to thread a needle, so to speak. They will have to adhere to their truth regardless of how many lies are thrown their way. They will have to remain winsome amidst wave after wave of aspersions cast upon them. Most importantly, they must provide a positive example of traditional marriage, regardless of the climate. This isn’t the first assault on marriage and it won’t be the last in the secular West. The discussion is far from over.
All material was drawn from the Supreme Court’s Justices’ decision and opinions on the case of Obergefell et al., v. Hodges, Director, Ohio Department of Health et al. See link below for source and further reading:
The American Scrivener 