By: Alaina Richard
Had you been scrolling through your Facebook newsfeed on June 26, 2015, you might have seen a rather colorful display of newly updated rainbow-filtered profile pictures. On the day the Supreme Court handed down their decision in Obergefell v. Hodges, there was a raucous and emotional response on the Internet, on the steps of the Supreme Court building, and even on the exterior of the White House. There is no dispute that the decision in Obergefell created a tidal wave of change that is still crashing down on the social and political foundation of our country. For some, it marked the end of a decades-long battle for what they viewed as (and what SCOTUS has now declared) a “fundamental right” – marriage for same gender couples. For others, it rattled their view and definition of an ancient institution – marriage between a man and a woman. It is somewhat moot to discuss the hesitancy many felt and still feel regarding the decision in favor of same gender couples. The highest court in the land has spoken and the issue of marriage as a fundamental right has been (somewhat) laid to rest. However, it is helpful to attempt to understand the social and political backlash that always accompanies major social change by delving into the arguments against the Supreme Court’s ruling, outlined in a dissenting opinion by Chief Justice John Roberts. And perhaps more importantly, many feel that this decision has unearthed a bevy of new questions that still beg to be answered.
Chief Justice Roberts’ dissent attacked the majority’s opinion on several fronts: the historical definition of marriage, the Supreme Court’s role in deciding what is and what is not an unenumerated “fundamental right,” and the role of public opinion and the judiciary in interpreting the Constitution. Roberts spoke of the historical inception of marriage and its purpose – as a union created to produce and raise children. His opinion articulated marriage as inseparable from the need for procreation and, as such, the “man/woman element” of marriage is essential.
In addition to Roberts’ view that the purpose of marriage is to produce children, he also questioned the majority’s view that marriage was a “fundamental right” simply because it is beneficial to the interested parties and to society. Chief Justice Roberts declared,
If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law… Allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental’—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. (Obergefell, p. 11) (Emphasis added)
Roberts’ dissent raises many questions regarding the majority’s reasoning regarding “fundamental rights.” Are all things that are good for the people involved and good for society fundamental rights? Or is marriage a fundamental right because that was simply the most convenient explanation for the majority under mounting social pressure to legalized same sex marriage? Are fundamental rights like pornography – you’ll know it when you see it? He questioned the convenience of the majority’s opinion under social pressure, stating that the two-person component in a marriage is as essential as the male/female component. Roberts posed the question: why preserve the two-person element but change other components of the traditional definition of marriage? Roberts stated to all attorneys arguing on behalf of same gender marriage, “You’re not seeking to join that institution, you’re seeking to change what the institution is.”
While some of Roberts’ language is mildly incendiary, his concerns are not irrelevant. Roberts may consider multi-person marriages wildly unconventional, but could, or rather should, the definition of marriage one day expand to include more than two people? In many cultures, the concept of a multi-wife marriage has historical roots. At various times in the Mormon faith and other Middle Eastern cultures, polygamy was commonplace. The idea of legal three-or-more-marriages seems perhaps insulting to some, but social change is moving at a rapid pace. Social norms are being inverted and public opinion sways now more than ever towards tolerance of all people. In light of an increasingly more tolerant general public, the question remains: Should the Supreme Court simply declare unenumerated “fundamental rights” based upon society’s ever-changing idea of what is considered socially tolerable? Roberts acknowledged the role of the legislature to adapt the law to conform to the ideals of the general public. He admonishes, however, the judiciary from acting in the same manner. By simply declaring the right to marry as fundamental, Roberts and other dissenters argue that the judiciary is exceeding its Constitutional authority by creating law. Textualists shiver at the thought of writing something into the Constitution that simply is not present.
The majority has spoken and those who have spent decades yearning for this decision are free to marry whomever they choose. Our Facebook feeds peppered with tiny rainbow filters are evidence of the impact of this landmark decision. Still, the court system has only begun to tiptoe into the minefield of other questions that now also must be grappled with. There are questions of the judiciary’s role, questions regarding gay couples’ ability to adopt, issues of enforcement in states with contradicting laws and strong religious objections, questions regarding the role of religious liberty in denying married gay couples services – the list goes on. With the majority’s decision in Obergefell, it seems the proverbial “can of worms” has been opened.
By: Jacob Longman
The Supreme Court of the United State’s ruling in Obergefell v. Hodges can be traced back to 1961. On November 1, 1961, a doctor and a Planned Parenthood representative opened a clinic in Connecticut hoping to repeal a law from 1879. By a 7-2 vote they declared the law unconstitutional. On the surface, a case about contraception in Connecticut and a case about homosexual marriage in Ohio—or Maryland, where Obergefell and his partner, John Arthur, married—aren’t the most similar. Certainly, there are more than a few distinguishable facts. However, those actions back in 1961 set the stage for the “Right to Privacy” that we know today, and it allowed for the continued evolution of substantive due process. Without the steady march of substantive due process, Obergefell goes nowhere. With that, Obergefell is just the beginning.
Probably the most important thing that wasn’t mentioned in Obergefell is whether homosexuals are a protected class, one entitled to protection from the federal government regarding discrimination. The second most important is whether laws regarding same-sex couples are entitled to strict scrutiny under judicial review. As American society continues to move towards cultural inclusivity, sooner or later federal courts are going to run head first into both issues, setting the stage for what is probably going to be the next major legal battle regarding homosexuality in the United States.
While all of the dissents of Obergefell are noteworthy, Justice Alito’s dissent is probably the one that’s the most realized. While Chief Justice Roberts writes about a reality that has already occurred—the changing definition of marriage—and Justice Scalia’s is full of pithy wit, Justice Alito alone looks towards the most immediate legal ramification of Obergefell, namely the ensuing battle over First Amendment protections of “religious liberties.” The word “protection” is exactly what is going to be at stake, as the initial round of legislation will most likely involve individuals stating that being forced to perform certain actions are an infringement of their religious rights. On the other side will be homosexuals looking for the benefits strict scrutiny provides, mainly heightened federal review of state statutes regarding their treatment.
Given the steady trend of substantive due process, it seems likely that the protection the First Amendment provides religious individuals will be redefined legally as a shield or defined in a way that keeps others from acting in a way that conflicts with your beliefs. While any sword, defined as a religious belief you hold that would cause you to act a certain way towards another, will be steadily eroded.
Justice Kennedy, writing for the 5-vote majority in Obergefell, stated, “History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” Regardless of how the battle unfolds, one look at the recent trend of the court shows us that the end result will be the classification of sexual identity as a protected class.
Whether or not this is a legal positive or negative depends on your perception of American society. Regardless, the trend and language, exists throughout time. Starting with Griswold v. Connecticut, the court has, with minor setbacks, steadily moved in a direction that affords substantive due process rights where they deem necessary. This concept of an activist court concerns quite a few—Justice Scalia’s entire dissent is aflame with it—but the bottom line is that a Supreme Court that is willing to extend rights to individuals is in line with the idea of equality that is enumerated within the Constitution.
By developing and then applying substantive due process, the Supreme Court of the United States has taken a direct role in mitigating the circumstances of those it deems victims of unequal governmental treatment in our time. While concern rightly exists regarding who the Supreme Court designates as victims, and what other powers the Supreme Court bestows upon itself, there is no doubt that legislative gridlock can grind the mechanisms of our democracy to a halt, and that the Supreme Court has found a work around.
“Words,” Justice Antonin Scalia once said, “Have meaning. And their meaning doesn’t change.” This is another, more abstract, ramification of Obergefell. Words have meaning, but the court has held that their meaning changes. When you say thanks to someone for holding an umbrella over your head as you walk to your car, it’s a very different thanks than you say to someone who hits you with their car. Obergefell principally exists because the Supreme Court recognized this distinction and decided to redefine the term marriage. Marriage used to be a legal contract or union that exists between a man and woman. Now, marriage means a legal contract or union that exists between two individuals.