Hellion Magazine - Same-Sex Marriage Opponents Challenge the Supreme Court & Constitutional Law

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Same-Sex Marriage Opponents Challenge the Supreme Court & Constitutional Law

By Sam Flynn

October 14th 2015


On June 26, 2015, the Twitter hashtag #LoveIsEqual trended globally and many Facebook photos took on shades of the rainbow. It was the day that the U.S. Supreme Court’s landmark decision Obergefell v. Hodges made same-sex marriage legal in the entire United States of America.

While many celebrated outside and online, there were many equally upset. A vocal segment of the population, against whom the tide of public opinion turned, opposed the decision vehemently including four Supreme Court justices.

The nine-person bench ruled five-to-four in favor of Obergefell v. Hodges, which guaranteed the fundamental right to marry under two clauses in the Fourteenth Amendment: the Due Process and Equal Protection Clauses. Justices Ruth Bader Ginsberg, Anthony Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan were for while Chief Justice John G. Roberts and Justices Samuel Alito, Jr., Clarence Thomas and Antonin Scalia were against.

Justice Kennedy was the swing vote, a role that he has become accustomed to. Recently, Politico literally called him “history’s swing vote” while listing him the most influential person in U.S. politics. The list was out of 50 contemporary “thinkers, doers and visionaries” like Pope Francis, Bernie Sanders, and the Koch brothers.

In his affirmation, Kennedy wrote “. . . the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.”

Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”

Justice Anthony Kennedy, Obergefell v. Hodges, pg. 8

At the core of his opinion was Kennedy’s rejection of the idea that homosexual men and women seek to disrespect the idea of marriage. Instead, he said that their fight for it is emblematic of how they do respect it.

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,” Kennedy concluded on page 33 of the decision.

Chief Justice Roberts, who days earlier had been voted in assent for the SCOTUS decision King v. Burwell, 14-114 upholding Obamacare subsidies, wrote the dissenting opinion.

Roberts concurred with Kennedy’s description of marriage but came to a different conclusion; that such an institution was made to be exclusive, not inclusive and its permanence in culture should be upheld, not changed.

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11,23. As a result, the Court invalidates the marriage laws of more than half the States and order 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?”

Chief Justice John G. Roberts, Obergefell v. Hodges, pg. 42

In contrast, Kennedy embraced a loose construction of the Constitution amenable to update with the times. According to him, the generations that created the Bill of Rights and the Fourteenth Amendment were not arrogant enough to “presume to know the extent of freedom in all of its dimensions and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

When new insight reveals discord between the Constitution’s central protections and a received legal structure, a claim to liberty must be addressed," he mused on page 16 of the report.

He cited Duncan v. Louisiana, a 1968 decision that extended Sixth Amendment rights to include states’ right to a jury trial as precedent. According to Kennedy’s opinion on page 15, “these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

Roberts seemed to see the writing on the wall and in his decision emphasized precursory ideas of religious liberty. On page 32 he wrote about the “religious freedom” to continue advocating against same-sex marriage, as guaranteed, he said, by their First Amendment right to religious protection.

He argued on page 41 that SCOTUS was not a legislature and the issue of whether same-sex marriage was a good idea or not “should be of no concern to us.” He quoted Alexander Hamilton’s essay The Federalist No. 78, first published in 1788, that those who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”

Justices Antonin Scalia and Clarence Thomas also chimed in with dissenting opinions. Their tones were more strident and barbed than Roberts’, with Scalia referring to his fellow justices’ in-favor decision as “pure applesauce” and legal “jiggery-pokery.” Like Roberts’, they said SCOTUS was legislating from the bench and overstepping its bounds.

This is naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” Scalia wrote on page 73. “Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ reasoned judgment. A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserved to be called a democracy.”

Thomas argued that both the Constitution and the Declaration of Independence were predicated on one fact: that one’s liberty and dignity were things “to be shielded from – not provided by – the State.”

The Obergefell decision cast that aside to appease the masses, he said, and misapplies the Constitutional clauses “to afford substantive rights” while disregarding liberty and distorting the principles of the country.

[The Court’s] decision will have inestimable consequences for our Constitution and our society,” Thomas concluded on page 94.

Like Roberts, Thomas said that the longevity of marriage as an institution inured it to potential change. He argued that there was no correlation between denying marriage rights for same-sex couples and previous laws denying them to interracial couples. According to his research, those laws were spawned by the institution of slavery and that the laws defining marriage as between one man and one woman “do not share this sordid history.”

The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history,” he said on page 88.

37 states had legalized gay marriage prior to Obergefell v. Hodges. Several Republican governors, who account for 31 of the states, issued statements themselves. The governors of the 13 states who had not legalized it prior responded to the decision.

Those states were Michigan, Ohio, Tennessee, Georgia, Kentucky, Missouri, North Dakota, South Dakota, Nebraska, Arkansas, Texas, Mississippi, and Louisiana. Two of those states, Ohio and Louisiana, have governors’, John Kasich and Bobby Jindal respectively, running for the Republican presidential nomination. While Kasich said his state would simply abide by the law, Jindal was more elaborate in his opposition. “The Supreme Court decision today conveniently and not surprisingly follows public opinion polls, and tramples on states’ rights that were once protected by the 10th Amendment of the Constitution,” his statement said. “Marriage between a man and a woman was established by God, and no earthly court can alter that. This decision will pave the way for an all-out assault against the religious freedom rights of Christians who disagree with this decision. This ruling must not be used as pretext by Washington to erode our right to religious liberty.”

Of the 13 states where same-sex marriage bans were overturned, only two states had Democratic governors. One, Missouri governor Jay Nixon, hailed the verdict as “a major victory for equality and an important step toward a fairer and more just society for all Americans.” The other, Kentucky governor Steve Beshear, made headlines last year when he overruled the state’s Democratic attorney general and hired outside lawyers to defend the state’s same-sex marriage band.

However, according to a letter Slate reported he sent to all 120 license offices in Kentucky, he told the clerks that while their oath and the Supreme Court cannot tell them what to believe, it does tell them how to act.

While some Republican governors like Michigan’s Rick Snyder struck a conciliatory tone, saying, “Recognizing that there are strong feelings on both sides, it is important for everyone to respect the judicial process and the decision today from the U.S. Supreme Court.”, others’ pushback ranged from subtle to overt.

For example, Tennessee governor Bill Haslam issued the short but pointed statement, “The people of Tennessee have recently voted clearly on this issue. The Supreme Court has overturned that vote. We will comply with the decision and will ensure that our departments are able to do so as quickly as possible."

Similar complaints were lodged by Nebraska’s Pete Ricketts and Mississippi’s Phil Bryant. Ricketts pointed out that 70 percent of Nebraskans approved an amendment to their state constitution that defined marriage as only between a man and a woman while Bryant released a statement on the ruling, saying that the new federal marriage standards are out of step with the wishes of many in the state.

Texas governor Greg Abbott was second only to Jindal in his disapproval, vowing to defend the religious liberties of those who believe in traditional marriage. He went as far as to issue a directive to state agencies later in the day instructing them to prioritize such protections. "No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage," Abbott said.

No matter how upset the governors, the Republican presidential candidates were apoplectic by matters of degree. Almost everyone came out with statements against the decision, though with varying levels of forcefulness in their texts. Vice versa with the Democratic nominees who all praised the decision.

Hillary Clinton tweeted personally from her campaign account, “Proud to celebrate a historic victory for marriage equality & the courage & determination of LGBT Americans who made it possible.-H”, and issued a statement saying she was “celebrating” the decision and the “generations of advocates who fought to make it possible.”

From Stonewall to the Supreme Court, the courage and determination of the LGBT community has changed hearts and changed laws,” the statement read.

Bernie Sanders, the insurgent democratic socialist challenger to Clinton, tweeted “Today the Supreme Court fulfilled the words engraved upon its building: ‘Equal justice under law,’” later adding that “for far too long our justice system has marginalized the gay community and I am very glad the Court has finally caught up to the American people.”

Former Maryland governor Martin O’Malley patted his home state on the back in his statement, saying “marriage is a human right – not a state right. “I’m grateful to the people of Maryland for leading the way on this important issue of human dignity and equality under the law. The American Dream is strongest when all are included.”

The distant outsiders, former Rhode Island and Virginia governors Lincoln Chafee and Jim Webb, also affirmed support for the decision.

Fellow Floridians, former governor Jeb Bush and Sen. Marco Rubio, restated their support for traditional marriage and disagreement with the ruling but took a conciliatory tone. Bush reminded voters to love their neighbor and respect others.

In a country as diverse as ours, good people who have opposing views should be able to live side by side,” Bush said. “It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.”

On the other hand, Rubio played the long game, saying that, in the future, the focus of the next president to nominate justices to the Supreme Court that are “committed to applying the Constitution as written and originally understood.”

Joining the two was the low-polling Sen. Lindsey Graham (SC) who pragmatically did not see popular support for their last remaining resort, a constitutional amendment. Instead, he dedicated himself to the popular “religious liberty” cause, a point former neurosurgeon and first-time politician Ben Carson emphasized in his release.

While Bush, Rubio and Graham occupied the acceptance space of opinion, Wisconsin governor Scott Walker, Texas Sen. Ted Cruz and former Arkansas governor Mike Huckabee reacted with contempt and warnings.

The last 24 hours at the United States Supreme Court were among the darkest hours of our nation," Cruz told a crowd of more than 100 Iowans gathered on a baseball diamond in the small town of Pierson.

"Yesterday, the court doubled down with a 5-4 opinion that undermines not just the definition of marriage, but the very foundations of our representative system of government," Cruz said. "For those who say the marriage decision yesterday is the law of the land, it is fundamentally illegitimate, it is wrong, it is not law, and it is not the Constitution."

Former Pennsylvania senator Rick Santorum likened the decision to the cases of Dred Scott and Plessy v. Ferguson, saying SCOTUS “has an imperfect track record.” Huckabee was equally righteous and critical.

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.”

Former Texas governor Rick Perry, former Hewlett-Packard CEO Carly Fiorina and New Jersey governor Chris Christie all echoed the sentiment that SCOTUS was legislating from the bench, with Fiorina and Christie specifically citing Justices Roberts and Alito in their statements.

Donald Trump, the billionaire businessman frontrunner, responded in typical fashion on Twitter, calling the decision another example of “the Bush appointed Supreme Court Justice John Roberts” letting “us down.” “Jeb pushed him hard! Remember!” he tweeted.

While many oppose the ruling on religious grounds, strict constitutionalists also raised concern. In the article “Was this the right way to legalize gay marriage?” for The New York Times Magazine, staff writer Emily Bazelon said that the question isn’t whether same-sex couples have the right to marriage but “whether it is the court’s job to usher them in.”

The next step in opponents’ sights was a constitutional amendment. NPR’s Greg Allen reported that organizations like the National Organization for Marriage and Alliance Defending Freedom were setting their sights on new legal battles, such as renewed religious liberty lobbying in state legislatures and other means.

The Washington Post interviewed Rick Scarborough, the leader of a Texas-based group that gathered 55,000 signatures to “defend” marriage. He said that they could resist via a Christian school firing an employee for being married to another man.

That’s what we mean by civilly disobeying. We’re not going to change our practice or our pattern to fit the whims of the Supreme Court,” he said. “If you sue us, we’ll face the lawsuits, and we’ll continue until bankruptcy . . . or jail time, if required.”

Ben Shapiro, editor of Breitbart and author of The People vs. Barack Obama, tweeted that morning “The majority opinion is simple: Government is God. Rights are granted, redefined, or taken at will by government”

The first few months of a post-Obergefell v. Hodges world has seen the ongoing troubles of Christian bakers and the civil disobedience of Kim Davis to deny issuing marriage licenses. The ordeal made her and her case a symbol for the decision’s opponents.

Whether its cases like the Kleins of Sweet Cakes by Melissa from Oregon or Kim Davis, the ongoing conflicts created by the decision will reverberate through the country for the foreseeable future, kept alive via the respirator of the 2016 presidential campaign.