(Following is a brief account of the Supreme Court findings on the same-sex marriage case [Obergefell v. Hodges] held recently. In the following account, the term “syllabus” refers to a Court summary of the issue, mostly from the point of view of the majority decision.)
The syllabus of this decision reports that the voters for the majority are KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., who all joined in filing the majority opinion. The dissenters were 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 final vote of the Court was 5 votes for the majority, 4 dissenting.
The syllabus reported that “Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed.” (Syllabus Obergefell v. Hodges)
It is necessary in understanding the history of this same-sex marriage controversy to know that the Court invalidated DOMA (Defense of Marriage Act) in 2013, saying that it impermissibly disparaged same-sex couples from expressing their commitment to one another. Since then, there have been many Appeals Court cases affirming the right of same-sex couples to marry. (E. Manring)
“The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” (Syllabus Obergefell v. Hodges)
“Finally, the First Amendment ensures that religions, those who adhere to religious doctrines and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” (Syllabus Obergefell v. Hodges)
“Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” (Syllabus Obergefell v. Hodges)
“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. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.” (Syllabus Obergefell v. Hodges) It must be noted, however, that all the previous changes to the marriage union presupposed that the marrying partners were of opposite sex. (E. Manring)
“Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, long ago, invalidated bans on interracial unions, and Turner v. Safley, held that prisoners could not be denied the right to marry. In Zablocki v. Redhail the Court invalidated a law barring fathers delinquent on child-support payments from marrying. To be sure, these cases all presumed a relationship involving opposite-sex partners; never before has the Court proclaimed that same-sex marriage was legal.” (Syllabus Obergefell v. Hodges)
“The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This principle should give conservatives some pause for thought. Belief on the conservative side of this debate is usually on the side of protecting personal freedoms—this point should be particularly acceptable to the Libertarian faction within America’s conservative movement.” (Kennedy’s majority opinion)
“A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” (Kennedy’s majority opinion)
“A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” (Kennedy’s majority opinion) This reason for same-sex marriage is in direct conflict with studies that show children raised in homosexual homes demonstrate unfavorable outcomes in the areas of dependence on public assistance, employment as young adults, mental health, sexual identity and practice, sexual health and safety, and the children’s own adult families. (Mark Regnerus at the University of Texas at Austin) (Kennedy also uses Brief for Scholars of the Constitutional Rights of Children and Brief for Gary J. Gates for justifying the raising of children in same-sex marriages; but the briefs only deal with the fact that children in same-sex marriages suffer from being stigmatized because they are in those homes. These studies do not address the ultimate outcome of children in same-sex unions. The Regnerus study looked at the outcomes of those children and found that the outcomes were unfavorable.)
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Therefore, Justice Kennedy says that Americans should be married. He cites Alexis de Tocqueville’s comments that marriage is the cornerstone of American society. He neglects to mention that de Tocqueville was not considering same-sex marriages. (E. Manring)
The Court considers that the state laws prohibiting same-sex marriage as burdens on the liberty of same-sex couples and it sees these laws as abridgements on central precepts of equality. To support this view of the Court, the Court has invoked the Equal Protection Clause and the Due Process Clauses of the 14th Amendment to the Constitution. (E. Manring)
Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Even at that, however, this decision of the Supreme Court does not address the grievances of florists and bakers who object to being drawn into cooperation with same-sex marriages to which they are morally opposed. (E. Manring)
“From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations. The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. This wisdom was echoed centuries later and half a world away by Cicero, who wrote, ‘The first bond of society is marriage; next, children; and then the family.’ There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.” (From the majority opinion, written by Justice Kennedy. Of note, here, is the fact that Justice Kennedy did not quote the biblical admonitions against homosexuality, nor the biblical statements affirming that marriage is a covenant between the two different sexes. I suppose he thought that reference was insignificant. Justice Kennedy apparently thought that the authority of Confucius and Cicero were more important than the words of Moses, Jesus, and the Apostle Paul.)
“That history is the beginning of these cases. The respondents (i.e., the conservatives who oppose same-sex marriage) say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” (Kennedy’s majority opinion)
“The petitioners acknowledge this history (of heterosexual marriage) but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ (those who want to institute same-sex marriage) claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” (Kennedy’s majority opinion)
“New insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” (Kennedy’s majority opinion)
“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.” (Kennedy’s majority opinion) Note, here, the progressive possibilities inherent in this majority decision. It seems that unending changes are foreseen as society sees the need in years to come. (E. Manring)
For the Court’s purposes to define the Fourteenth Amendments scope, in interpretation concerning the interests, values, and liberties of citizens, especially in its view of the Due Process Clause and the Equal Protection Clause of the Amendment, the Court has said that “history and tradition guide and discipline the inquiry but do not set its outer boundaries.” In other words, it seems to me that the Court has determined that new liberties may come up on an indefinite progression, as the culture desires. If this concept of open-ended non-limit to the principle of freedom is allowed to stand, the Constitution will continue to be vulnerable to all sorts of revisionist mischief. Almost any kind of behavioral change may be introduced into the document and considered to be acceptable as a new whim of concurrent social belief. This idea of open boundary on the idea of freedom nullifies the whole idea of permanence in our system of law. (E. Manring)
“The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe.” (Kennedy’s majority opinion) (See my statement below about the lack of monogamy, exclusivity, and permanency that is characteristic of same-sex marriages. E.Manring)
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” (Kennedy’s majority opinion)
Dissenting
Opinions
Petitioners make
strong arguments rooted in social policy and considerations of fairness. 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 Federalist No. 78, p. 465)“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.” (John Roberts, dissenting)
“Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.” (John Roberts, dissenting)
“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’ As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of 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. Just who do we think we are?” (John Roberts, dissenting)
“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.” (John Roberts, dissenting)
“This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things (what the framers of the Declaration of Independence called “the Laws of Nature and of Nature’s God”) to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.” (John Roberts, dissenting)
“The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.” (John Roberts, dissenting)
“Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, ‘Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.’” (J. Q. Wilson, The Marriage Problem 2002). (John Roberts, dissenting)
“The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with the whole subject of the domestic relations of husband and wife. There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. Even when state laws did not specify this definition expressly, no one doubted what they meant. The meaning of ‘marriage’ went without saying.” (John Roberts, dissenting)
“Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as ‘the legal union of a man and woman for life,’ which served the purposes of ‘preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.’” (John Roberts, dissenting)
“This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as ‘the union for life of one man and one woman,’ Murphy v. Ramsey, 114 U. S. 15, 45 (1885), which forms ‘the foundation of the family and of society, without which there would be neither civilization nor progress,’ Maynard v. Hill, 125 U. S. 190, 211 (1888). We later described marriage as ‘fundamental to our very existence and survival,’ an understanding that necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967); see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942). More recent cases have directly connected the right to marry with the ‘right to procreate.’ Zablocki v. Redhail, 434 U. S. 374, 386 (1978). (John Roberts, dissenting)
This whole issue of same-sex marriage is the great “bait and switch” of our time. The homosexual agenda baits the society with the claim that they want equal rights and privileges with the rest of society—they want to be recognized as just another part of free American society. Gullible Americans bite the bait—in the interest of fairness and “justice for all,” they grant the privilege of being called “married” to the gay community. Then…the homosexuals switch to their real agenda, i.e., the destruction of marriage as mankind has known it for millennia. And how will same-sex marriage do that? (E.Manring)
Same-sex marriage has been around long enough for everyone to know and understand its characteristics: Same-sex marriage couples have a horrendously high divorce rate and those marriages are not often monogamous; there are lots of outside sex activity going on in those “marriages.” These facts have been well documented in the experience of the Netherlands. Their “marriages” do not have the qualities necessary for constructive and functional marriages. They lack the characteristics we have come to value in heterosexual marriages, i.e., exclusivity, monogamy, and permanence. (E. Manring)
When same-sex couples get “married,” they bring all the infidelity of their culture with them and transfer those qualities to our classic understanding of what a real marriage is. They do this in the hope of changing our classic and health-producing understanding of marriage. I am very fearful that that is exactly what will happen with a bunch of same-sex couples claiming the legal description of “married.” (E. Manring)
Those who will not cooperate in same-sex weddings are not homophobic, hate-filled people, or bigots. They are simply people who are obeying the precepts handed to them by God. (E. Manring)
“Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” (Alito, dissenting)
“Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.” (Alito dissenting)
Just because something bears the aspect of the inevitable one should not, therefore, go along willingly with it. Philip K. Dick
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