The Supreme Court, Same Sex Marriage, and the Definition of Liberty

| July 9, 2015

Wedding Rings And Wooden GavelOn June 26, 2015, the United States Supreme Court ended the ongoing national democratic debate over same-sex marriage. The majority opinion written by Justice Kennedy and the four dissents debated issues that reached to the core of American political and social institutions – issues such as Separation of Powers,  Principles of Constitutional Interpretation, the Definition of Liberty, the Dignity of Individuals, Freedom of Religion, and (what occasioned the whole debate) the Essence of Marriage.

Their argument was not over the merits of same sex marriage.   Nowhere in the 103 pages of opinions is there any suggestion that many Americans consider homosexuality immoral.  To the contrary, Chief Justice Roberts wrote that his dissent is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples, a position which he said “has undeniable appeal.”  Justice Scalia was more blunt: The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes … So it is not of special importance to me what the law says about marriage.

Rather, the debate focused on the power of the Supreme Court to declare a constitutional right that is nowhere found in the text of the Constitution, and to override the laws of the States passed by elected representatives or by direct vote of the people.

The majority grounded its argument on the 14th Amendment, which prohibits any State from depriving a citizen of life, liberty or property without due process of law.  Over the past 150 years, the Supreme Court has expanded the definition of liberty beyond the original Bill of Rights, to include (in the words of the majority) those “liberties [which] extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”   Justice Kennedy explained this basis for the ruling in the initial sentences of his opinion:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

From there, Justice Kennedy and the majority found that the right to marry is one such liberty (which the Court had recognized in prior cases), that marriage as an institution has evolved over time, and that the constitution is “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 stricture, a claim to liberty must be addressed.”

The Court then traced the history of the legal status of homosexuality from being criminal behavior, to be considered a mental illness, to the understanding today that sexual orientation is a matter of “the petitioners’ … immutable nature.”

Therefore, the Court found that the State impediments to same sex marriage are deprivations of liberty which the Constitution will not allow to be imposed any longer.

The dissents disagreed on essentially every point of that analysis.

Their arguments ranged from the careful and deliberate analysis of Chief Justice Roberts, to the anger and soaring rhetoric of Justice Thomas, to the scorn and derision of Justice Scalia (who wrote that the legal analysis of the majority was so sloppy that if he had written it “I would hide my head in a bag” and that “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”)

The majority claimed that the Federal Constitution compelled this requirement upon the States.  The dissents disagreed, citing particular references to prior decisions written by Justice Kennedy himself that “regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

The majority claimed that the right to liberty included a right to marriage.  The dissenters noted that what was at issue was not the “right to marry” – gays and lesbians have long found religious and social institutions that will perform and honor their marriages.  What is at issue is whether the benefits that a State confers upon marriage (in tax laws, inheritance laws, and otherwise) must be granted to same-sex couples.  Justice Thomas explained that “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”

The majority relied on cases in which the Court had declared laws against interracial marriage unconstitutional as precedent for overturning laws against same-sex marriage.   The dissenters would have none of it, saying “Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was.”

The majority relied on past cases in which the Court had established a right to privacy, and for individuals to make private and personal decisions for themselves.  The dissents retorted:

The privacy cases provide no support for the majority’s position, because petitioners do not seek privacy.  Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits.

The majority claimed that the long debate had reached a point of final decision so far as the law is concerned.  Chief Justice Roberts wrote with grave concern that —

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.”  As a result, 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 …  Just who do we think we are?

The majority saw no threat to religious freedoms in this decision.  Justice Kennedy wrote:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. 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, and to their own deep aspirations to continue the family structure they have long revered.

The dissent was not so sure:

Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage.  The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

The majority held that State reorganization of same-sex marriage was necessary for the “dignity” of those individuals – and Justice Thomas went ballistic:

The majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples….  The flaw in that reasoning, of course, is that … the government would be incapable of bestowing dignity.  Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal”  and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.  Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

Most importantly, the dissenters believed that the Court had taken away from the American people an important issue that was being decided by them, through the democratic process.

When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. …

But today the Court puts a stop to all that. … There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.

Almost an afterthought in the debate is where it all started – the nature and purpose of marriage.  Here, the roles seemed to be reversed, with the dissenters very limited in their language: “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.”

The majority saw it much differently, and saw marriage as something much higher and nobler –

From their beginning to their most recent page, 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.

Certainly, society will move on (it was already moving in that direction) and the nation will survive.  But, respectfully, something should be said about the politicalization of the Supreme Court.  Not many years ago, the Court was considered as an institution separate and apart from political issues.  Justices nominated to the Court were confirmed by overwhelming bi-partisan majorities in the Senate (Justice Stevens 98 – 0, Justice O’Conner 99 -0, Justice Scalia 98 -0, Justice Kennedy 97 – 0).  Their decisions moved the law slowly, or when it announced change on social issues, they did so with unanimous (or near unanimous) opinions.
This decision was made in the middle of a national democratic debate; it was celebrated by the White House like a political victory; it decided a national question with only a  5 – 4 majority.  It can only further the perception (or the reality) that the Court is now prize to be won in elections; and that its members are champions of a particular viewpoint  rather than the impartial arbitrators of constitutional law.

Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.