The Justice Chronicles Volume 24: Obergefell v. Hodges: At Last Marriage is Equal

Last month the Supreme Court ruled 5-4 that gay couples have a right to marry and any laws that prevented that are unconstitutional. It’s been nearly a month since the ruling came out, but I wanted to read the opinion before writing about it (yes, you can actually contact the public affairs office of the Supreme Court).

People who handicap the Court generally assumed Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayer, and Elana Kagan would vote for marriage equality; Justices John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito would vote that states should have the right to decide, and that Justice Anthony Kennedy would be the swing vote that would carry the majority.

They were right. Justice Kennedy voted to strike down laws in those states that prohibit gay marriage. He wrote the opinion for the majority. Justices Roberts, Scalia, Thomas, and Alito all wrote dissenting opinions.

Writing for the majority, Justice Kennedy spoke of how “the history of marriage is one of both continuity and change.” Furthermore, “[h]istory and tradition guide and discipline the inquiry but do not set its outer boundaries.” He noted that in 1967 the Court struck down laws in much of the South that prohibited interracial marriage. Additionally in 1978 the Court struck down a law in Wisconsin that prohibited men from marrying if they owed child support, and in 1987 they found that prison inmates cannot be prohibited from marrying. The majority finds this case is a continuation of striking down laws that forbid different people from marrying.

The minority argued that while those other cases did strike down laws that prevented certain classes of people to marry, none of them changed the definition of marriage, that being between one man and one woman. Justice Roberts, in particular, felt that there has been a robust and necessary debate in this country on the definition of marriage and this ruling short circuited that debate. Ultimately he wrote that the definition of marriage should be decided by legislation, not judicial decision.

Justice Scalia agreed with Justice Roberts, and added his own concurrence. He found it telling that societies all over the earth and throughout history have defined marriage the same way: one man and one woman, and yet 5 unelected justices change marriage with the flick of a pen.

Justice Thomas wrote the part of the opinion that troubles me the most. The majority opinion speaks of how marriage equality allows the same dignity to homosexual couples that heterosexual couples have been able to take for granted. Justice Thomas argued that the government cannot confer or deny dignity. He wrote: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.” The fact that he is descended from slaves who would doubtless be shocked by this is only part of my disappointment.

Finally, Justice Alito, in addition to concurring with many of the arguments, added this one: this ruling will make it more difficult for those who disagree about gay marriage. He wrote it “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” Further, “[r]ecalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fairplay.” In other words, this means the bullies may now be bullied.

I make no secret of my support for marriage equality. Far from devaluing marriage, I believe this enhances marriage by making it possible for a group that has been previously excluded. I’ve been married for 17 1/2 years and it’s been wonderful. It’s nice to see that our gay brothers and sisters have that open to them also.

By the way, the ban on interracial marriage was struck down 48 years ago. Most Americans now profess agreement with that decision. I pray that in a few years almost nobody will admit to having opposed gay marriage.

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