In Marriage Decision, An Ode to Love and Four Provocations

Image from DC protest in April of 2015 courtesy flickr user Elvert Barnes via Creative Commons

Today’s majority opinion in Obergefell v. Hodges, striking down state bans on same-sex marriage, is an ode to love—and the law. Authored by Justice Anthony Kennedy, who was joined by the Court’s four liberal justices, it’s also an homage to the Constitution’s guarantees of equal protection, an affirmation of the role of the Court in interpreting the Constitution, and an exposition on the nature of tolerance and acceptance, including religious tolerance, in a democratic society.

The right to marry, the Court held today, “is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

At its core, the majority opinion celebrates the special bonds and intimacy between couples, whether gay or straight, whether interested in children or not, and affirms that all couples have equal rights to participate in marriage. While the four conservative dissenters rejected the concept that the Constitution, or the Court, or even any branch of the government should protect the equality and therefore dignity of its citizens, the majority opinion hinges on the Court’s precedents in doing exactly that. It draws on a series of cases reaching back to Griswold v. Connecticut, which in 1965 struck down laws criminalizing the sale and purchase of contraception, Loving v. Virginia, which in 1967 struck down laws barring marriages between couples of different races, and, of course, Lawrence v. Texas, which in 2003 struck down anti-sodomy laws, and United States v. Windsor, which invalidated the Defense of Marriage Act ten years later.

Kennedy answered conservative claims that marriage equality would undermine the institution of marriage, arguing that “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.” Preempting claims that same-sex couples have attained many rights in recent decades, and they shouldn’t then undermine the historic institution of marriage, Kennedy argued that Lawrence, for example, provides insufficient protection under the Constitution because going  from “outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.” The Constitutional guarantee of equal protection, the majority wrote, ensures that both same-sex and opposite-sex couples equally “may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”

But in separate dissenting opinions, the four conservative justices issued dire, apocalyptic warnings of what they portray as the impact of judicial overreach and a coming infringement on religious exercise. For the dissenters, the decision represented a “judicial putsch” (Antonin Scalia) and “nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to” (Chief Justice John Roberts). It “makes only a weak gesture toward religious liberty in a single paragraph” (Clarence Thomas), and will be used “to vilify Americans who are unwilling to assent to the new orthodoxy” (Samuel Alito).

Here’s that single paragraph in the majority opinion that Thomas finds so distressing:

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.

The conservatives, though, refuse to acknowledge that the Constitution can both guarantee the Free Exercise rights of opponents of same-sex marriage and the Equal Protection rights of same-sex couples. Taken together, the four dissenting opinions will fuel ongoing grievances about “judicial tyranny” forcing opponents of same-sex marriage into, as Alito put it, a “new orthodoxy” which will strip them of their religious rights.

Roberts ominously predicted religious objectors would face an unfriendly court should they bring their grievances there. “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples,” he wrote in his dissent. “There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

It’s not surprising, then, that the American Conservative Union chairman Matt Schlapp said in a statement this afternoon,”Today’s opinion creates the Church of the Supreme Court, with President Obama serving as its High Priest.” That’s undoubtedly only the beginning of the overheated rhetoric to come.

The majority opinion, though, gamed out all these arguments. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here,” Kennedy wrote.

The dissenters could only focus on, in Alito’s words, the “marginalization of the many Americans who have traditional ideas.” The notion that the Constitution protects the rights of citizens to equality and dignity appeared lost on them. Thomas not only refused to acknowledge that the Court has historically interpreted the Constitution to ameliorate the infringement of the right to equal protection, he refused to acknowledge such wrongs even existed. “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved,” he wrote in a jaw-dropping passage. “Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.”

Under Windsor, bans on same-sex marriage, like the Defense of Marriage Act, “impermissibly disparage[]” same-sex couples “who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” That might not have always been clear to us, Kennedy wrote, but “the nature of injustice is that we may not always see it in our own times.” The framers may not have been able to predict all future injustices. But “[w]hen new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

It’s precisely that new insight that the dissenters refuse to accept, worshipping originalism over human beings. Scalia even grumbled that the lack of religious and other diversity on the Court undermined the validity of its decision. “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine,” he wrote, “is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

But there, again, together with Thomas, he utterly misses what made this decision possible, and desirable: that the Court has recognized and protected the human rights of those traditionally not represented in the echelons of power. Scalia is just so undone by the majority opinion that he thinks that he is now one of the oppressed.


  •' Liya says:

    Proud to be in America today ! Congratulations to LGBT and all freedom loving people. What those 4 dumbnuts justices do not understand is that EVERY one of their arguments is as valid as if it was made ( and it had been made, in it’s time) about interracial marriage. Losers.

  •' NancyP says:

    Odd, Scalia’s comment about lack of religious diversity of the SCOTUS justices. His conservative branch of Catholicism is grossly over-represented WRT its incidence in the US population. Alito is quite right about his likelihood of being depicted as a Grumpy Old Man.

  •' Eric says:

    Exactly: “worshipping originalism over human beings.”

    “Scalia is just so undone by the majority opinion that he thinks that he is now one of the oppressed.”

    And the thinks the very judicial institution he represents is the one oppressing him. I’ve seen 5 year old react better to not getting what they want.

  •' fiona64 says:

    Two words for the haters: BOO and YAH.

    I have been an ally, working with my GLBT friends on this matter, for more than 20 years. At times I feared the day would not come in my lifetime, even as the dominoes started to fall. But here we are, with proof that there really *is* liberty and justice *for all.*

  •' cranefly says:

    “ ‘Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved’ ”

    But the law treated them that way, as if their dignity and humanity were less. We can’t have the law treating people as less human than others. The dissenter arguments evade the reality that gays are people too, like, actual people.

  •' joeyj1220 says:

    Waiting for Frank to come by… I drink his tears with relish 🙂

  •' timberwraith says:

    There has been a diminishing subset of the religious and the general populace who’ve taken for granted that they can use the state as an instrument in abusing a group of people whose lives they fear and detest. This ruling adversely impacts their ability to enact that abuse. This represents a loss of control over the abused and abusers often become enraged when this happens.

    I suspect that these same people now fear that others will do to them what they have done to LGBT people. If you spend your days assuming that it is only natural to use the state as a means to abuse and control a detested minority, what happens when you become a minority? I imagine it is easy to project your own tendency towards abuse upon those who you once controlled.

    And last but not least, if you truly believe that everlasting torture is a just end for people who you deem unrighteous, why wouldn’t you fear being abused horribly by those who see you as unrighteous?

    All of this serves as an argument against embracing theologies centered upon fear and control, especially when fear and control is expressed as a pervasive abusiveness encapsulated in a false shell of professed love. This promotes a duplicitous and conflicted approach to the world, driven by a fear of that which escapes conformist boundaries—that which resists control.

  •' Penny Davis says:

    I agree with all of what you write timberwrath. I hope that we can now turn down the heat of the rhetoric and move on. We know that pastors will NOT be forced to marry same sex couples, but can we agree that it is also not wise to create animosity by insisting that bakers bake cakes or florists provide flowers for those ceremonies? Let’s prove that those fears you articulate are not grounded in reality and the occasion can be celebrated by allowing others to hold their own beliefs, no matter how much we might disagree with them. Historically, it is all too common for the abused to become the abusers–let’s show that it stops here.

  •' timberwraith says:

    I can’t agree with that. There are still many communities in the US
    in which discrimination is an issue. Just as state and federal law
    prohibits discrimination for other protected classes of people, LGBT
    people also deserve these protections. If someone can sue for
    discrimination based upon race, sex, etc. then the same should be true
    for sexual orientation, gender identity, and gender expression.

    I don’t care where a person’s prejudices originate from. Discrimination
    is discrimination. In the US, racial/ethnic prejudice are traditionally
    based in religious belief but now, few would be willing to (publicly)
    justify such discrimination even if the person doing the discrimination
    were doing so as a member of a Christian Identity hate group.

    And given the communities outside of urban areas are still riddled with
    hatred and given that we still have an immense body of unchallenged
    prejudice among student bodies and public schools, this is not
    time to tone down the rhetoric. There’s still A LOT of work to be done.
    Just because it’s legal to marry, that doesn’t even to begin to
    address issues of discrimination and prejudice. It is still legal to
    discriminate against LGBT people in much of the US with no legal
    recourse for the person at the focus of the prejudice in question.

  •' timberwraith says:

    Historically, it is all too common for the abused to become the abusers–let’s show that it stops here.

    Fighting discrimination isn’t abuse. Although, the those of majority status almost always tries to portray it as such.

  •' timberwraith says:

    Put another way, if a Christian business owner refused to provide services to a Muslim or Jewish person because the person they’re serving has different religious beliefs, the person being discriminated against has every right to seek legal recourse.

    Discrimination by an anti-gay Christian business owner against an LGBT person is also based in discriminating against a person who has different religious beliefs. It doesn’t matter if the difference in belief is focused on having different prophets, different gods, different religious texts, or different ideas regarding divinely approved modes of family and sexuality, discrimination against LGBT people is often a form of religious discrimination.

    If it’s not right or legal to discriminate against someone because they aren’t a member of your religion and your religion prohibits the worship of their gods and texts, its also not right to discriminate against someone because their religious views allow for modes of family and sexuality that your religion prohibits. It’s still discrimination. It’s still bigotry that’s being acted upon. It’s still based in a will to impose control and abuse upon a person who is viewed as inferior in some way.

  •' Penny Davis says:

    OK, I feel sufficiently chastised. And I am pleased i gave you the opportunity to educate us on all those things, most of which i also agree with–and already knew before I posted my snarky comment. I suspect that Fred Phelps and the homophobic bakers and florists in this country did more for the cause of same sex marriage than they ever dreamed they could do. We couldn’t pay for that kind of publicity. Besides driving people away from churches, they also made people who consciously or unconsciously agreed with them uncomfortable when they saw the ugliness of their own prejudices acted out. But, for the reasons you stated, there are far bigger issues to be dealt with than cakes, and we should be careful not to let them detract from the very serious issues of job discrimination, parental rights, etc. I’m not the expert, but I’d hope we would choose those battles that all people can relate to because they are important in their lives, too. LIke who gets their children if one of them dies. Or what are the divorce laws that apply to them? Not annoyances that the media will use to entertain their viewers. We will never rid ourselves of discrimination of some sort. Fix the big things and the small things will follow. Or maybe we’ll figure out that it’s the small things that trip up all marriages. And now I’m thinking of all the ways you can misinterpret what I just said.

  •' timberwraith says:

    But, for the reasons you stated, there are far bigger issues to be dealt with than cakes, and we should be careful not to let them detract from the very serious issues of job discrimination, parental rights, etc. I’m not the expert, but I’d hope we would choose those battles that all people can relate to because they are important in their lives, too.

    Straight people have their kinds of relationships honored and promoted from cradle to grave. Straight people don’t have to worry about being followed down a dark street by an angry, hateful mob of teenage boys because they were holding hands with the love of their life. They don’t have to worry about the humiliation of being told that they can’t be married in their childhood church because their love is a farcical evil in the eyes of the pastor. They don’t have to worry about having their food spit in by a server because she noticed you kiss your partner hello as she sat down next to you in the diner. They don’t have to worry about suppressing any signs of affection because they’re traveling through a dangerous part of the country, where anti-LGBT hate crimes are common.

    A straight person can’t imagine the hurt, anger, humiliation, and weary resignation that comes from the daily abuse that queer people experience on a daily basis from straight people, compounded across the decades. It’s not just a refusal to sell a cake, it’s one more drop of abuse in an ocean of violence, one more neatly bound parcel of passive aggressive hatefulness in a warehouse filled with the same.

    At some point, the walls holding in a lifetime of anger breach, and you put your foot down. Something inside of you snaps and you draw a boundary right across the prejudiced small mindedness of the most recent bigot who’s trying to shit on your life in their own petty, controlling way.

    To straight people, it just looks like a cake. To a queer person, it’s the latest slap across the face in a lifetime of similar blows—some bloodier than others, but all taking a collective toll.

    For that reason, it’s actually rather difficult for a straight person to fully comprehend, what it’s like to endure the daily humiliation, anger, fear, disrespect, and a host of other negative emotions that we have to endure because of straight people’s widespread disdain of our most important relationships—relationships which straight people take for granted.

    I’m refuse to call out another queer person’s challenge to prejudice because straight people won’t be able to properly empathize, because it won’t provide a bullet proof photo-op or soundbite for the straight media. I won’t do that because I know, to the depth of my bones, what it’s like to live a lifetime under the daily violations of a straight, cis majority’s micro-aggressions, abuse, and ignorance.

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