|Same-sex marriage in the U.S. as of today*|
Just who do we think we are, indeed! What a wonderful question. It was asked this morning by Justice Roberts in his dissenting opinion to the 5-4 decision to eliminate all bans in the remaining thirteen states against same-sex marriage. The case known as Obergefell v. Hodges.
Here’s the context of that question, on page 42 of the ruling:
...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?
The answer that pops into my mind may not satisfy Justice Roberts, but we do not live by the traditions of the Kalahari or the Aztecs. We are a nation dedicated to the proposition that all men and women should be equal before the law, and that where injustice has traditionally prevailed, it can be put right.
Justice Roberts sees in the Constitution the notion that things ought to be the way they have always been. Fortunately, the majority of Supreme Court Justices see in the Constitution the inherent right to life, liberty and the pursuit of happiness.
What it came down to in the end was a clash between two ways of viewing the Constitution. The Fourteenth Amendment reads:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The five-person majority read in that “equal protection” clause a justification for taking down bans against same-sex marriage. They said as much, in so many words:
The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. (emphasis mine) (from p. 2 of ruling).
The four-person minority fell back on the argument that marriage laws should be made by individual states in state legislatures or by referendum, and not by the Supreme Court. And here is where “interpretation” becomes important. And why you need people on the bench who view the world from different perspectives. And not just smart straight old white men, clever though they may be.
I speak as a person who grew up gay in homophobic America. To this day I have members of my own biological family who believe their duty to their God requires that they not recognize my relationship with my husband. It took me the first several decades of my life to rid myself of the sense of wretchedness that comes with family rejection. Some people manage to spot the arbitrariness of religious interpretation, hang on to their religion and still get out from under the homophobia of the churches they belong to, usually quite by accident of birth. I had to shake off religious doctrine as a mark of provincialism and lack of familiarity with the richness of life before I was able entirely to make that great leap into freedom and dignity.
We live in communities. It’s not enough for most people to know what’s right and do it regardless of the consequences. Most of us need approval of our family, friends and peers. But like many LGBT people who have lived in a hostile home, I have come to understand in the marrow of my bones that my right to human dignity is absolute. Those who would have me buy into the view that I am “fundamentally flawed” or “intrinsically disordered” – the second of those two ways of putting it comes from the pope of the Catholics himself – are just plain wrong. Dead wrong. Cruelly wrong.
The five men and women who put this ban on marriage equality down saw something in the spirit of the constitution that is raw and real and overpowering. The view that LGBT people are “intrinsically disordered” is no more valid than is the view that people of the white race are entitled to own people of color. It’s an idea that runs contrary to human decency, and we have, at long last, reached the point where the majority of us now recognize that.
It has been painful listening to Roberts and Scalia and Alito (and Thomas, if he would say anything) explaining that our right to dignity is not inherent, that we can have it, possibly, but all in good time, and only if the majority of our fellow citizens goes to the polls and makes it happen. That argument makes you wonder if these men have any idea what the “pursuit of happiness” is all about. One can reason one’s way in and out of anything. The majority took note today that our sexuality is as innate as our race or our gender. If women are to be treated equally to men and blacks to whites, and if those rights are to be found in the Constitution, they are there in the Constitution for us, as well.
Kennedy is getting tons of credit, and he deserves it. USA TODAY has as one of its lead articles this morning:
WASHINGTON — Justice Anthony Kennedy cracked the door to same-sex marriage more than a decade ago. On Friday, he finally flung it open.
His decision legalizing same-sex marriage nationwide came on the 12th anniversary of another of Kennedy's decisions, that one striking down state laws that banned same-sex relations. But that, Kennedy said Friday, was not enough. "Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty," he said.
I don’t want to take any of this credit away from Kennedy. He did, after all, write the majority opinion on all four of the court's major cases on the subject, including Windsor v. United States, which struck down a key part of the federal Defense of Marriage Act two years ago. But I’d hate to see Sotomayor, Kagan, Breyer, and perhaps especially Ginsberg, all of whom are profound thinkers and defenders of the U.S. Constitution, be treated as also-rans. They put a lot into making this a great day for equality in America.
The strongest sounding argument for not having the Supreme Court make this decision comes from those who look at Kennedy’s swing vote and ask, in mock astonishment, how it can be that a single political appointee to the Court can make a decision which overrides nearly half the country. Scalia used the word “hubris” to describe the work of his progressive colleagues on the bench. A “bare majority,” he sneered. Which begs the question, of course, of whether Scalia would have decisions made any other way.
Here’s GOP darling Mike Huckabee on the topic:
The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do-redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat. (emphasis in original)
I can just hear his Auntie Maude saying to him, “Hush now, Mikie. You’re embarrassing yourself.” Does this man running for president really know so little about how our government works? Did he actually flunk fourth-grade civics?
I say expressing misgivings about the court's determining constitutionality against the will of "nearly half" of the population may be the strongest sounding argument against today’s decision. It only sounds that way until the brain kicks in and you realize what a prune-faced opinion that actually is. "Nearly half" is another way of saying “not the majority.” Do traditionalists like Scalia actually want us to ignore the majority in this case and go with "nearly half" instead? That's an academic argument, by the way. Remember, it's the court making the decision on constitutionality. Not the population at large.
And a Supreme Court Justice is not just a political appointee. He or she is virtually always a highly experienced lawyer with a solid record of sound judicial decisions. They are not all equal in stature, and in some cases their political views poke through their legal ones – or at least we suspect they do. But they are chosen according to a well-established procedure which we, as a democracy, have agreed upon. And for reasons we have agreed upon – checks and balance. Flawed though it may be, this system of giving a body of men and women the responsibility to check the legal decisions made by lower courts and determine whether they follow the spirit of the Constitution beats the hell out of other ways of doing things. Like democracy, it’s the worst way to do things, possibly, except for all the other ways. Each decision made, even by a majority of one, is another piece of evidence that sometimes the government actually works as it is supposed to.
It worked that way today. And my cynicism about the chaos in the legislative branch and the weakness in the executive branch is less today than it was yesterday. I still worry we’ve gone over the cliff and our democracy cannot right itself. But today there is some very good news indeed. Time to focus today on the good things the US of A is capable of.
Oh, Happy Happy Day.
photo credit: Same-Sex Marriage Map
*Same-sex marriage legalization pending in Louisiana;
Same-sex marriage ban overturned, decision stayed indefinitely in Alabama:
Same-sex marriage banned even though the Supreme Court of the United States has found similar bans unconstitutional in island protectorates;
Same-sex marriage "legality complicated" in Kansas.