Every once in a while, there is an event that everybody seems compelled to comment on. Almost always, the comments are all very similar, and therefore obvious. And yet, the compulsion remains, because it is such an important issue. It seems that this is the case with Obergefell v. Hodges, the Supreme Court ruling on same-sex marriage, and I will submit to the compulsion.
The reason I am choosing to write this is that among my generation, I hear very little about the actual reasons someone would not support the decision. There is plenty of talk about how we are to love people we disagree with, and how God is sovereign at all times. These things are good reminders, but why do we disagree with the decision in the first place? I mean, the arguments and rhetoric are quite powerful, and have reversed the opinion of millions of people in the span of a single decade. These arguments demand the attention of anyone who encounters them, and that means every single thinking person in America and the Western world.
I myself had not truly wrestled with the questions until about a week ago, and when I began considering the ruling it created deep cognitive dissonance. Both sides have strong arguments. So I speak not from self-righteousness, but from humility. If I accuse anyone of laziness in engaging social issues, I assure you I accuse myself. No one is lazier. Ask my roommate.
One more point about the method of dialogue. Each discipline is related, yet each is distinct. When someone is considering an issue within the scope of a certain field, he should adopt the methodology and language of that field. For example, theological arguments have no place in a discussion of the age of the universe. This topic may have theological implications, sure, but the reality of age is a matter of science. In the same way, the decision of the court is not a moral issue, but a legal one. It is a matter of law, so we ought to engage it as such.
To begin the dialogue, two principles must be understood. First is the separation of powers. The executive, legislative, and judicial branches were created distinct. Each has different abilities. The legislative creates laws while the judicial determines whether existing laws fit within the bounds of the Constitution. The second is federalism. This one is even more vital to understand, because since the late 1800s it has been largely forgotten. We are not a national government, but a federal. This means we have different levels of government, each with different powers. The power of the federal government is severely limited by the Constitution. The States are less limited, but still limited by their own Constitutions. Local government has more power, and so on. This is to preserve the principle of self-governance.
Now we can examine the majority opinion of the Court. Essentially, this is their argument. The right to marry whomever you please (within certain obvious boundaries such as ability to give consent) is a fundamental right. It is derived from Nature itself; it is self-evident, as the Founders would have said. Thus, the Due Process Clause of the Fourteenth Amendment protects this right. Therefore, it is unconstitutional to prohibit gay marriage.
Justice Thomas’ dissent most thoroughly reveals the poverty of this argument. First, few people agree with the first proposition, that the right to marry whomever you please is a fundamental right. This proposition includes incestuous and polyamorous marriage. Arguments can be made for the distinction between same-sex marriage and these two, but I believe these arguments are lacking. Proving that is beyond the scope of this document. The point is that until the Netherlands in 2001, every society in recorded history has recognized that the definition of marriage is between a man and a woman. Plato argued in favor of homosexual relationships, yet he still adhered to the traditional definition of marriage. Examples like this abound. To claim that a gay couple has a fundamental right to marry is to claim that this right has been missed for thousands of years. In fact, the majority opinion explicitly says precisely this. I am not saying that this argument proves that gay marriage is not a fundamental right; that would be a textbook fallacy. Rather I am saying that there is a significant burden of proof on the supporters.
Even if the right to gay marriage is a fundamental right, the decision would still be incorrect. To believe so is to affirm the doctrine of substantive due process. Some affirm this, but I do not. The role of the Court is to protect those rights that the Constitution lists, or enumerates. Justice Roberts’ dissent provides several examples in which protection of implied rights not included in the Constitution have produced absolutely disastrous decisions. For example, a similar line of logic as the majority used was applied in the Dred Scott Decision, infamous for being among the worst Supreme Court decisions of all time. In that decision, the fundamental rights of slave-owners over their property (by property I mean slaves) were considered. At least in that case, there was a notion of property, which is in fact enumerated! The point is that assuming a conception of property or assuming which rights are fundamental is not what the Court is meant to do. It is not only dangerous, it quickly leads to contradictory results. To understand the gravity of contradiction, you must understand the principle of explosion.
Even if the right to marry was enumerated somewhere, the claim that it implies the right for same-sex couples to marry is simple equivocation. As I said before, until 2001, the definition of marriage for all known societies in history has been the union of a man and a woman. Thus, if the Constitution stated, “The right to marry shall not be abridged for any reason,” this would still not affirm gay marriage. The word “marry” by definition implies an opposite-sex couple.
Even if the right to gay marriage was enumerated somewhere, the Due Process Clause is not a valid clause to use to justify the petitioner’s case. The Fourteenth Amendment’s language comes from the Fifth Amendment’s language. It is clearly a clause protecting the rights of the accused criminal. To apply it to the right to marry in any sense is an invalid use. To make the argument even more powerful, one can follow the origin of the language back to Magna Carta 1225, section 29. Justice Thomas calls the freedom it protects “the freedom from physical restraint” (6). In any case, when it says “liberty,” it is clearly not talking about the idea of fundamental rights. In other words, substantive due process is a false doctrine.
By all precedent, tradition, and legal principles, this was a bad decision. There have been worse decisions, to be sure. But by no means was this a good decision.
Should gay marriage be legal? The purpose of the Court is not to decide this issue. The purpose is to decide if it is already legal. The purpose is to decide if the Constitution, which we the people have already ratified, demands that it is legal. The question of whether or not it ought to be legal is completely different. As I see it, the gay community has two perfectly legitimate ways to decide this question.
One, they could pass an amendment to the constitution opposite to DOMA. This would clearly make denying same-sex marriage illegal. Or two, their state could pass an act opposite to DOMA. Either one is viable. As Justice Roberts said on using the Due Process Clause, “There is indeed a process due the people on issues of this sort – the democratic process” (22). In fact, I’m certain that within two decades, one of those two things would have occurred. The momentum was unstoppable, and I grant the LGBT community their considerable political prowess.
Arguing that the decision was bad without disputing the outcome is not mere nitpicking. The way in which society changes is very important. The Reign of Terror teaches me that. As all four dissents pointed out (yes, all four dissenters wrote a separate opinion – this is extremely rare), this decision amounted to five unelected judges imposing their will upon 350 million citizens. This is not democracy, it is not even mob rule. It is simple oligarchy, and I believe in the republican form of government too much to stay silent.
Now, it is true that the gay community rightly feels urgency in their quest to legalize gay marriage. Tax benefits and government issued documents such as birth and death certificates are influenced by marriage. In addition, visiting hours at a hospital are determined by familial relation. Justice Thomas astutely notes, however, that the freedoms that the Constitution protects are freedoms from government. All of these benefits that marriage provides are given by the government. Thus, the Constitution says nothing of these benefits. Sure, they are good and I am glad I have them. But not getting them is not being denied a fundamental right in the same sense that taxation without representation is. Gays could in fact already be married. It is an institution separate from government. This case was not over whether or not they were allowed to be married, but whether the States were required to recognize their definition of marriage. This is what I dispute.
You may say that following my logic, DOMA was unconstitutional. Not so simple. As I see it, Section 2 pretty explicitly violates the Full Faith and Credit Clause. It is possible that this conclusion can be avoided by claiming that the different definitions of marriage creates an equivocation, so a marriage in one state is literally not the same thing as a marriage in another, but I dunno. A recognized gay marriage is still a public act of the State. Section 3 simply defines what the term marriage means. I do not see how one can argue over the legality of a definition. So I am undecided on that issue. I have not looked into it enough. But probably, DOMA is also unconstitutional.
I have so far not said a single thing as to whether gay marriage should be legal or not. And I will not. To further demonstrate the importance and practical implementation of the separation of powers, I will not discuss this, because it is irrelevant to the case. I certainly have a view, but it does not matter what that view is. Plus this post is long enough already.
Finally, I would like to toot my own horn a little bit. I would like to point out that I have also not even hinted at a moral fault in the petitioners. I come to this discussion with full respect for the views of my opponent, and am completely open to criticism. In fact I relish it, for I need it. I plead that the same level of respect be granted to me. We are both adults living the wild adventure called life. Let us build together wisely and graciously.
For further reading. Warning, these are long. But the actual text of the case is absolutely vital to read in order to understand the issue. At the very, very least read Justice Roberts’ dissent.
Two Treatises on Government by John Locke. I haven’t read this, but everyone says it is basically what the Constitution was founded on.
The Federalist Papers. A particularly important one would be 78.
United States v. Windsor. The case that struck down DOMA. Haven’t read this one either, but it would be interesting to see the difference between the two.