The laudable ideals of due process and equality have been commandeered by five members of the Supreme Court to remake, in their own image, the oldest and most fundamental institution —marriage. That is the immediate result of the Court’s five-four decision in Obergefell v. Hodges. Justice Kennedy, for the majority writes: “…the right to marry 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 liberty.” There are so many things on so many levels wrong with the Kennedy Opinion that it inspired, in the four dissenting justices, a level of outrage that is not normally found issuing from high court judges. Are they justified in what they wrote? Sadly, the answer is yes.
Justice Scalia says the opinion is “lacking even a thin veneer of law.” He calls it a “judicial Putsch,” that is, a sudden overthrow of the rules which governed this area of law. He says that the majority is “entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’s permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since…minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., …Louis Brandeis…Felix Frankfurter…”
Roberts agrees. He points out that Kennedy fails to give even a nod to the longstanding reluctance of the modern Court to judicially fashion new implied substantive “rights” out of the Due Process Clause of the Fourteenth Amendment. Its most noteworthy venture into creating implied substantive rights was Roe v. Wade and the rancorous litigating about that decision continues today, forty years later! That is the reason why the Court has generally insisted, that when an implied fundamental right is claimed anew under the Due Process Clause, the “utmost care” must be observed. Otherwise the Due Process Clause can be “transformed into the policy preferences of the Members of the Court.” Unfortunately, Roberts and his fellow dissenters believe that this is exactly what has happened in Obergefell. Roberts: “The right…[the majority]…announces has no basis in the Constitution or this Court’s precedents…the majority’s decision is an act of will, not legal judgment.”
When Roberts speaks of the lack of connection this decision has with precedent, he is identifying two more failings of the opinion. First, opinion recounts the changes in the outlook of Americans toward homosexual unions and includes the personal narratives of three of the homosexual parties to the suit. Frankly, however, this is irrelevant to the question of whether there is a right to same-sex marriage. Secondly, the precedents Kennedy cites do not point to gay marriage as a fundamental right. Loving v. Virginia is a good example of a case repeatedly referred to by the Court but which says absolutely nothing about same-sex marriage. It is a case which found Virginia’s criminal ban on inter-racial marriages unconstitutional. This case and others “…do not hold, of course, that anyone who wants to get married has a constitutional right to do so…None of the laws at issue…purported to change the core definition of marriage as the union of a man and woman.” Justice Kennedy also refers to the case which struck down the Texas criminal sodomy law—Lawrence v. Texas. Once again the state laws at issue in Obergefell—banning same-sex marriage—as Roberts’s points out, “…create no crime and impose no punishment. Same-sex couples remain free to live together…” These unconvincing efforts ring empty when the cases cited are closely scrutinized. They amount to what Justice Scalia describes as “mummeries,” that is a showy performance that has no real content.
Besides providing a wobbly structure of precedent, the majority seriously undermines both federalism and the democratic process with this decision. The issue of same-sex unions had been considered and was being considered by individual states. This is nothing new for the states which, until now, have had the responsibility of defining marriage. State legislators are experienced at considering the benefits and costs of changes in this important institution of marriage. They are used to weighing the sentiments, convictions, and apprehensions of their constituents and responding accordingly. Our Founders wisely left such matters to the individual states, acting through their chosen representatives, because those state legislators were closest to the cultural pulse of the people affected. But the Court’s majority, in what Scalia calls an act of “hubris,” puts a stop to the “public debate over same-sex marriage” which “displayed American democracy at its best.” Roberts adds: “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.” Scalia continues: “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” Justice Alito agrees: “If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not…The majority today makes that impossible.”
Furthermore, the Kennedy opinion casts a foreboding shadow on the religious liberty of Americans of religious faith. In what Justice Thomas calls “a weak gesture toward religious liberty,” the majority opinion allows persons of faith “to continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned…” Justice Kennedy continuing: “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…” Justice Thomas: “Religious liberty is about freedom of action….” In other words, people of faith seek to live their lives in every realm according to the Scriptures, in their schools, workplaces, businesses. This is where they need protection from the heavy hand of the federal and state governments, not just in the sanctity of their Sunday school rooms, churches and synagogues. “Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition [of marriage]…Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”
In conclusion, the harm done to the standing of the Court in much of the public’s eye is another troubling result of this decision. Justice Scalia: “The stuff contained in today’s opinion has to diminish the Court’s reputation for clear thinking and sober analysis.” Justice Alito: “…[A]ll Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.” Justice Roberts: “The Court…orders the transformation of a social institution that has formed a basis for human society for millennia…Just who do we think we are?”
Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College, Grove City, Pennsylvania and a Fellow in the Center for Vision & Values at Grove City College. He is a graduate of the University of Michigan Law School and a member of the State Bar of Pennsylvania. He is a frequent contributor to the Center for Vision & Values on U.S. Supreme Court developments.