Today’s opinion in Obergefell v. Hodges, which invents a constitutional right to same-sex marriage applicable to the 50 states, is a story of judicial pride, successful marketing by same-sex marriage groups, and the triumph of modern therapeutic individualism. It is not a legal story. It has “nothing to do with” the Constitution, as Chief Justice Roberts so accurately states in his dissent.
By a razor-thin majority of 5-4, the court held that both the “due process” and the “equal protection” clauses of the 14th Amendment — “nor shall any state deprive any person of life, liberty, or property, without due process of law” or the “equal protection of the laws” — implied the right of two persons of the same-sex to receive state marriage recognition in order that they might “define and express their identity.” Not surprisingly, Justice Anthony Kennedy authored the majority opinion, relying heavily upon language appearing in three prior opinions wherein the court had affirmed legal abortion (Planned Parenthood v. Casey), invented a constitutional right to homosexual sodomy (Lawrence v. Texas) and struck down the federal Defense of Marriage Act on the grounds that it was motivated strictly by a “bare ... desire to harm” homosexuals (U.S. v. Windsor).
Ordinarily, when the court “finds” a new (nontextual) right in the Constitution, it does so by asking itself what “ordered liberty” requires, or what the country’s “history and tradition” indicate. Today, the majority quite explicitly abandoned that test in favor exercising what Kennedy called “reasoned judgment” “guide[d] by history and tradition,” but not determined by it. Wrote the court: this new method “learns from [history] without allowing the past alone to rule the present.” In short, as Justice Antonin Scalia so accurately opined in his dissent, this new “system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Kennedy’s opinion reduced the meaning of marriage to individuals’ right to achieve “self-definition,” “nobility,” “fulfillment,” “aspirations,” “autonomy,” “the avoidance of “loneliness,” “companionship and understanding.” These rights are nowhere mentioned in the Constitution but reflect only the philosophical musings of what Scalia termed five “unrepresentative” and “elite” Americans who have reduced Supreme Court reasoning to the “mystical aphorisms of the fortune cookie.”
The majority claimed that its result was compelled by respect for four legal traditions respecting marriage: individual autonomy, self-definition by means of commitment, safeguarding children, and the social order. Regarding children, it declared without evidence or reasoned argument that it would be better for children living in same-sex households if the definition of marriage was stripped of all reference to children. It asserted that children indirectly would benefit because same-sex marriage would affirm the “integrity and closeness of their own family” and assist the family’s “stability.” But, of course, almost 90 percent of children reared with two adults of the same sex are the product of a prior heterosexual relationship by one of the adults and have a legal mother and father already. The remaining children are separated from their biological parents by means of assisted reproduction or adoption. Recent essays by adult children reared in same-sex households indicate their deep longings for both of their parents, even as they often loved the two adults who raised them.
The dissents note the ominous implications of today’s decision for both religious freedom and for the invention of a constitutional right to polygamy. On the subject of religious freedom, the majority said only that religions retain a right to “teach” and “advocate” for their views on marriage. This is a far cry from the language of the First Amendment promising religious citizens a right to the “free exercise” of religion.
When individual states adopt same-sex marriage, they are able simultaneously to decide the scope of religious freedom. The court is not so empowered. Furthermore, in 1990 (in Employment Division v. Smith), the Supreme Court held that a generally applicable law, neutral on its face respecting religion, can burden religion so long as it bears a “rational relation to a legitimate state interest.” Today’s opinion asserts that laws recognizing same-sex marriage are not only rational but express a fundamental right of citizens with same-sex attraction to experience their very dignity and personhood. The court has created a most difficult environment for the achievement of religious freedom.
Several of the dissenters in Obergefell also noted that the majority’s “reasoning” easily supports a constitutional right to polygamy. Chief Justice Roberts asks: If citizens have a right to same-sex marriage because to deny it would be to “disparage their choices and diminish their personhood,” doesn’t the denial of plural marriage do the same?
Finally, every one of the four dissenters today issued a lament for democracy, a requiem for the system of government established by the Constitution. This is quite dramatic, but not overblown. Scalia wrote that the decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Chief Justice Roberts warned same-sex marriage advocates that they had “lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause,” because such opportunities require legitimate democratic process, not constitutionally illegitimate fiat.
The future is quite uncertain on the matters of marriage and religious freedom. Christians — fresh from Pope Francis’ recent call in Laudato Si’ to affirm the intrinsic harmony of the marital alliance between the man and the woman created by God — have a great deal to offer the world. Today’s opinion does not alter our responsibility. It rather increases it.
Helen Alvaré is a law professor at George Mason University.
Justice Anthony Kennedy, writing the majority in Obergefell v. Hodges, outlined“four principles and traditions” that allow same-sex couples a Constitutional right to marriage:
1. The right to personal choice. “Decisions about marriage are among the most intimate that an individual can make,” he wrote.
2. That marriage “supports a two-person union unlike any other.” “Same-sex couples have the same right as opposite-sex
couples to enjoy intimate association,” he wrote.
3. The right to marry “safeguards children and families” and therefore “draws meaning from related rights of child-rearing,
procreation and education.” Without this “recognition, stability and predictability marriage offers,” he added, “children suffer the stigma of knowing their families are somehow lesser.”
4. Marriage is “a keystone of the Nation’s social order.” As such, he wrote, it’s “demeaning to lock same-sex couples out” of
such a “central institution” of the country.