US Supreme Court orders the Gay-Marriage

by: in Law
white house law blogs

Last Friday, in Obergefell et al v. Hodges the United States Supreme Court by a 5-4 vote held that same-sex couples may exercise the right to marry in all US States. President Obama, a fervent supporter and promotor of the gay-marriage and gay rights, decided to light up the White House as a rainbow and twittered that “Gay and lesbian couples now have the right to marry, just like anyone else. # Love wins”.

The ruling is no doubt a historical one; recognition of the gay marriage all over the US is simply a breakthrough. The ruling did not truly surprise though. Exactly, two years earlier, in United States v Windsor the Supreme Court already struck down a federal law forbidding federal recognition of same-sex marriages that were legal under state law. Dissenting Justice Scalia, notorious for his opposing to constitutional protection for gays and lesbians, already ‘warned’ that the majority opinion in Windsor and the reasoning followed therein, left little doubt as to the next step that the majority would take: “by formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition”.

Obergefell confirms Scalia’s ‘fears’. The five Justices that constituted the majority in Windsor now indeed took the same stance. In notably dramatic language, they concluded:

“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. [..] 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.”

The dissenting Justices accused the majority of acting like the legislature. The people of each State ought to be entitled to “expand marriage to include same-sex couples, or to retain the historic definition”. Supporters of same-sex marriages should use political channels and the democratic process to persuade their fellow citizens of their views. Dissenting Chief Justice Roberts accused the majority of having closed the debate by imposing their own personal view on the matter on the entire nation as a matter of constitutional law. Stealing this issue from the people will cast a cloud over same-sex marriages and decrease legitimacy. Scalia spoke of a ‘judicial Putsch’ and predicted that the ‘stuff contained in today’s opinion has to diminish [the] Court’s reputation for clear thinking and sober analysis’.

The dissenters no doubt have a point: in terms of legitimacy or societal acceptance, it is indeed preferable to have a decision concerning the recognition or introduction of the gay marriage taken by democratically founded political institutions rather than judges. Yet, the dissenters’ position is also quite incomprehensible. Nowhere in their opinions, does one find any concrete substantive argument as to why the people of a State ought to have the right to exclude some citizens from a right as fundamental as the right to marry. The dissenters do not come up with much more than vague references to religious freedom or democratic decision-making. Comparison with the civil or equal treatment rights of for example African Americans or women are dismissed with mere irritation but without any analysis. Upon reading their opinions, one gets the feeling that we are just dealing here with overly conservative men, who refuse to interpret the US Constitution in accordance with 21stcentury norms and views and who use bold words to hide the fact that they simply lack arguments. Of course, not anyone who opposes the same-sex marriage is an enemy of human decency, but those who wish to deny others rights without explanation are.