Reading the Letter of the Same-Sex Marriage Law

Following the landmark ruling in the case of Obergefell et al. v. Hodges by the Supreme Court on June 26, 2015, people across America took to the streets in celebration.  The Syllabus section of the Court’s ruling said the only purpose of the law is this:

“The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

Issuance and recognition of marriage licenses have always been expectations of white male-and-female couples of consenting age.  This was not always a privilege that mixed race couples enjoyed.  It was not until 1967 in the case of Loving v. Virginia that the Supreme Court unanimously ruled that banning interracial marriage was a Constitutional violation.  Now, people of common gender also have the legal right to marry and share common benefits such as the right to adopt, visit sick loved ones, and bequeath their belongings in death.  When love won the day, the tears of joy cried in the chamber of SCOTUS were as justified as the cheers in the street.

But many have disagreed strongly with the five assenting Justices.  Justices Roberts, Scalia, Alito and Thomas all felt the urgent need to express opposing opinions.  Historically, it is far more common for one Justice to write a dissenting opinion in a matter, but all four?  Clearly this is an emotional issue surrounded by misinterpretation.  (Read the opinions here.)

While Kennedy’s opinion relied heavily on the “equal protection clause,” Thomas’s dissent said: “The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or property.”  What Thomas fails to understand, however, is that same-sex couples were routinely deprived of life, liberty and property in states like Georgia.

Justice Scalia’s scathing dissent began by saying that the Court’s decision was a “threat to American democracy.”  In his argument for the status quo, he went on to say: “The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.”  As a person who was once a certified tax preparer, I can say unequivocally the Federal tax code applying to same-sex couples was ridiculously cumbersome.  As recently as 2012, many same-sex couples opted to file as single and head of household to avoid the trouble.  As for inheritance rules, well, they were random, capricious and absolutely unfair.

Justice Roberts’ dissent focused on the rights of voters and state legislatures to determine their own laws with regard to approval or disapproval of the recognition of the legality of same-sex marriages.  Simply said: “…(T)his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.”

Justice Alito was of the same opinion.  He said: “Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.”  Such an arrangement invites expensive, ugly political campaigns against gays and lesbians.

Many politicians also had to add their voices to the chorus of dissent.  Senator and presidential hopeful Ted Cruz went on Sean Hannity’s radio show Friday afternoon and called the combination of rulings on Obamacare and same-sex marriage “some of the darkest 24 hours in our nation’s history.”  Cruz went on to say: “…this radical decision purporting to strike down the marriage laws of every state.  It has no connection to the United States Constitution.  They are simply making it up.”

Of course, that is simply wrong.  (Shame on you, Harvard law school graduate!)  Before this ruling, there were 37 states in America that already condoned same-sex unions.  This law does not strike down the laws of those states.  The remaining 13 states either did not support gay marriage at all, or did not acknowledge legal marriages performed in other states.  The law says these states must now do both in the interest of equality.

Some pseudo-religious organizations based their defiance to the law on the grounds of “religious liberty.” The American Family Association responded by saying, in part:  “There is no doubt that this morning’s ruling will imperil religious liberty in America, as individuals of faith who uphold time-honored marriage and choose not to advocate for same-sex unions will now be viewed as extremists. But to the Court, we send this unequivocal message: We will continue to uphold God’s plan for marriage between one man and one woman, and we call on all Christians to continue to pray for the nation, and for those whose religious liberties will be directly impacted by this ruling.”

Wrong again.  Section IV of the court’s opinion said:

“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.”

This statement tells me that churches that do not condone same-sex marriages still have the right to refuse to perform weddings for gays and lesbians.  Walking hand-in hand with the principle right to free speech and the right to associate, evangelical pastors can tell these couple “No, we just don’t do that here.”  While some may argue that there will be someone somewhere who will try to take up a legal challenge to a church’s refusal based on this SCOTUS ruling, an argument against the church will fail immediately at the lower court level.  The lower court ruling will also be upheld in appeal based on the supremacy of the First Amendment.

I believe this ruling is wonderful for gay and lesbian couples.  I could say many, many things about my views on the topic, but no one could have spoken more eloquently than did Justice Kennedy in the closing paragraphs of the court’s opinion.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

And with that, the ruling of the Sixth Circuit Court was reversed.  Amen.