Friday, June 26, 2015

More questions than answers: Same-sex Marriage in America

Exactly two years ago today, the Supreme Court delivered its ruling in the case of United States v. Windsor, declaring part of the Defense of Marriage Act to be unconstitutional.  According to the Court, the federal government had an obligation to recognize same-sex marriages in states that had granted those marriages.  As such, thousands of marriages across the country were recognized by the federal government, which permitted them to obtain the benefits that come with marriage.  In 2013, the Court declined to address two significant issues.
  • Did the Constitution guarantee the right to marry to same-sex couples under the 14th Amendment's Due Process Clause?
  • Would individual states who did not approve same-sex marriages be required to recognize marriages from states who do grant those licenses?
The Court, which did not address these questions then, chose to deal with them today in the case of Obergefell v. Hodges.  In what's sure to be considered a controversial ruling, the justices voted 5-4 that the Constitution did guarantee the right to marriages to same-sex couples and would require states to recognize those marriages.

The case developed out of several challenges to state and federal laws from gay couples who believed they were being unfairly discriminated against.  The petitioners in these cases were from various parts of the nation, and their lawsuits were fair questions to address, since the Court kicked the can down the road two years ago.

I also made a post about the Windsor case, and the crux of that post, was that the debate about same-sex marriage was far from over.  I know it didn't exactly require a crystal ball to make that prediction.  However, the problem then is the same problem the Court created today.  I believe their decision was incorrect, and it's a more complex issue than what people believe. 

With its decision today, the Court essentially redefined the meaning of marriage, a social institution as old as recorded history itself.  Critics of the conservative position will claim that marriage has constantly evolved over time, and to that objection, I agree.  But until recently, no civilization had attempted to change that marriage was distinctly between men and women.  Is that alone a reason to keep it the same?  By no means, but the frustration that results from this case is that five individuals (i.e. the liberal wing of the Court) have made their determination not on the law, but their own preference.  In doing so, their arbitrary ruling of what marriage means is no less a farce than what they claim the historical definition of marriage is.  Chief Justice John Roberts wrote in his dissenting opinion,  
... 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, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. ... And it answers that question based not on neutral principles of constitutional law, but on its own "understanding of what freedom is and must become."  ... The real question in these cases is what constitutes marriage, ormore precisely who decides what constitutes marriage?  [emphasis original]
Roberts also referenced Justice John Marshall Harlan II, who noted that courts are not  "... free to roam where unguided speculation might take them."  Courts must "regard to what history teaches ..."  Did the Court today (which relied so heavily on Harlan's words) regard history when making this decision? 

Many critics of the traditional view of marriage would bring up the point that at one point, interracial marriages were banned in many states.  And the Court rightfully struck down such legislation in Loving v. Virginia (1967).  However, there's a distinct difference between the case of same-sex marriage and Loving.  The Court in Loving did not attempt to redefine marriage as between one man and one woman.  This presents a different issue altogether from the decision in Obergefell.  The Court in Loving was so convinced in its ruling, the decisions was 9-0.  The 5-4 decision today was one vote from a dramatically different decision.  These cases also differed in the sense that in Loving, a man and wife couple were actually imprisoned for their relationship, whereas same-sex couples today face no such action from the state.

This ruling from the Court also creates another problem with respect to religious freedoms.  What will the government do when a same-sex couple insists that a clergyman of their choosing conduct their wedding ceremony?  I'm certain that most same-sex couples will seek out an official for their wedding that supports their union, however, there will be conflicts.  Will we force pastors to violate their own religious beliefs as to provide 'equity' under the law?  How long before society accuses such a pastor of being discriminatory?  What if same-sex couples insist on having a ceremony inside a certain church that does not believe homosexuals should be included in the covenant of marriage? 

If people believe this to be an unrealistic expectation, or a far-fetched idea, consider the plight of many businesses operated by people of faith.  Bakeries, caterers, flower shops, and photographers can be required to be an unwilling participant in a ceremony they believe God does not condone.  Would you be willing to violate their First Amendment Freedom of Religion so that another person could exercise their right to marry? 

Moreover, many proponents of same-sex marriage have taken to notion that religious beliefs shouldn't be part of the equation in this situation.  The liberal position here often tries to correlate traditional marriage views as bigoted, or mean-spirited.  This is an unfair critique and overlooks the fact that so many good-natured people genuinely believe that homosexuality is not part of what marriage is. 

 One of the reasons why I believe Americans are so much more accepting of same-sex couples now (as opposed to two decades ago) is that more people actually know someone who is openly gay.  It becomes more difficult to oppose someone's position when you meet them face to face and regularly interact with them.  This should not translate to a Supreme Court ruling in their favor merely because we find they are likable people.  The Chief Justice also noted as much, writing,
... the majoritys argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majoritys position indefensible as a matter of constitutional law.

Maybe the people of the United States want to authorize same-sex marriage as a matter of policy through legislative bodies and approved by the governors of the states.  It's also worth noting that the Constitution nowhere mentions marriage.  Per the 10th Amendment, this is a power vested in the individual states to determine what their marriage laws ought to be.  Though the Constitution includes many rights that are not enumerated, the majority of the Court would have us believe that same-sex marriage is a fundamental right for no other reason than because they say so.

Justice Antonin Scalia wrote a blistering dissent, in which he critiqued the majority for essentially recreating laws as they saw fit.  Scalia wrote,
These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
This statement from Scalia also brings about the fair point that modern-day liberals have created a narrative in society that classifies anyone who does not agree with same-sex marriage as some kind of monster.  Such a notion discounts the genuine beliefs of so many, while engaging in the same sort of shenanigans they deride the right for engaging in.  The result is this: if you don't believe what we do, you should leave.  The level of intolerance for a conservative position on marriage is unconscionable. 

We also now face the problem about the extent of the meaning in 14th Amendment's Due Process Clause.  This text states, "Nor shall any State deprive any person of life, liberty, or property, without due process of law ..."  If the term 'liberty' is now construed to include same-sex couples, to what end will we go?  If, as the liberal position maintained in Obergefell, the traditional meaning of marriage somehow demeaned same-sex couples, then must we now conclude that liberty should include the right to marry more than one person.  If the Court's majority is correct in its ruling today, then polygamy must be on the table as well.  Where do we draw a line about marriage?  Why can't a 17 year old decide for themselves if they wish to marry?  Who among us is fit to get in the way of love?  The battle cry for liberals today is "love wins."  Well, love doesn't win unless you fit into their concept of what love entails.

While discussing the idea of love with respect to this issue, Justice Anthony Kennedy's last paragraph of the Opinion of the Court is worth examination.  He wrote,
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. 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 civilizations oldest institutions.

Though Kennedy's high view of marriage and love is commendable, I can't agree with some of his conclusion.  If the issue of this case is really about love, then Kennedy's position that homosexuals are "condemned to live in loneliness" is untrue.  No laws exist that prevent homosexuals from living together, loving one another, or sharing their lives.  If love is what really matters, then why does any couple need the sanctioning of any government or religious group?  Love each other and live your life. 

Love is not the issue at stake here.  This case is about the financial benefits that come with marriage, such as inheritance rights, tax breaks, and benefits packages.  The Court's ruling today missed this issue entirely. 

Justice Clarence Thomas chimed in on this particular subject, noting that the petitioners in this case could not make a claim that they've been deprived of life, liberty, or property.  His dissent included the following,
Petitioners cannot claim, under the most plausible definition of "liberty," that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.
So, again, what is it that same-sex couples are being deprived of? 

In its decision today, the Court and advocates of same-sex marriage will proclaim this as a victory for freedom and liberty, but the reality is that the Court caved to a small segment of society that made enough noise.  The notion that the Court is influenced in such a capacity is a problem for America.  The Opinion of the Court seemed to imply that their decision was the correct one because they felt it was the right thing to do.  They ignored history, robbed states of a decision that was always considered theirs, ignored the considerations of religious liberty, and veered into the realm of policy-making instead of interpreting the law. 

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