This comes a bit late but last Friday’s ruling on gay marriage has the potential to be the modern-day equivalent of Roe vs. Wade. Yes, I know, abortion has never come as close to being accepted as gay marriage but the judicial precedent the ruling set and the backlash and repercussions it caused in society could closely mirror gay marriage. To understand why we must understand the Supreme Court’s three opinions on gay marriage.
The 5-4 majority, authored by Justice Kennedy and cosigned by Justices Ginsburg, Breyer, Sotomeyer and Kagan, rested on a premise of “fairness.” Nevermind fairness has no legal precedent the majority opinion stated “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Justice Anthony Kennedy wrote in his sweeping decision in Obergefell v. Hodges. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Again, try to forget they already had equality under the law regarding federal tax benefits (though not necessarily at the state level). The Court’s decision is notable because back in 1972 a gay couple sued to get married in 1972. The case went all the way to the Minnesota and then US Supreme Court and was rejected by both bodies. But now, not so much.
So, has the Constitution changed since 1972? Of course not. But what as changed is public opinion and the pressure that opinion exerts on the Supreme Court. How else can it be explained that the five Justice majority had no legal precedent for their decision and thus resorted to flowery language lacking legal substance. Indeed, the lack of precedence and legal backing was taken apart by the dissents.
Chief Justice John Roberts hit the nail on the head in his dissent, joined by Justices Thomas and Alito, citing 1) state’s rights and 2) the slippery slope such an allowance would create. Oh, and by the way, now couples are trying to have their polygamous relationships recognized in Montana. Putting aside Robert’s lack of discomfort with public opinion shifting his view on Obamacare, Robert’s concerns over the court’s ruling are valid. If public opinion can swing the court’s ruling what is the point of having an elected Executive and legislature to make laws? Further, what is the point of states have designated powers? In Robert’s own words, “”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.”
Justices Thomas and Alito’s opposition argues that the Constitution’s definition of liberty has not changed. Thus, how can gay marriage proponents argue their liberty is being violated if it has not in the past? Lastly, Justice Scalia argued the same as Thomas and Alito but also found standing in the procreation argument. Scalia proved supportive of the idea that marriage and state rules regarding marriage were related to procreation and encouraging/discouraging such an act.
How does this relate to abortion you are now asking? Well, first off, gay marriage and abortion shared many similarities at the times they went to court. Numerous states legalized or imposed restrictions on abortion (just like gay marriage). Second, most of society knew abortion was going on (just like gay marriage). Lastly, when abortion came to court it was a young and new issue (like gay marriage). The Warren Court in its infinite wisdom wielded the biggest judicial activist cudgel since FDR in allowing the practice.
The result was all but preordained by the two dissents, Justices White and Rehnquist, who argued that the ruling would have deep societal implications the Court did not consider. They turned out to be right. Abortion is far more polarizing to date than gay marriage. But the gay marriage ruling is only a week old and the question is whether gay marriage will be as polarizing as abortion has proven to be in the future?
These two views of judicial activism (abortion and gay marriage), point to a further erosion of states rights and American values. While I fully understand American values are subject to changes over time states rights are not. Yet, this ruling completely disregards states rights as well as the power of the voter and elected branches by imposing such a decision on the entire nation. Far more troubling is the precedent this ruling could set.
If Justice Kennedy and the four liberal justices (who never saw a government expansion they opposed) are now making decisions on fairness it likely means that future rulings regarding religious freedom as it relates to gay marriage will lose before the Court. I mean, come now, is it fair that a gay couple cannot get somebody to make them a wedding cake? Never mind religious objections are protected under the 1st Amendment.
The only good thing out of this ruling is that four justices decided to stand up for states rights and Justice Kennedy has shown a proclivity to favor religious freedom over public opinion and governmental rules (Obamacare contraception rule). Still, the Court’s ruling and precedent is troubling. States rights apparently do not matter, tradition does not matter, officials elected by the public means nothing. Only “fairness.”