It has been a month since the Supreme Court announced in Obergefell v. Hodges that the right to same-sex marriage was protected by the US Constitution. With no new cases coming down to fuel the fire of support or opposition to the Court, with the Court in recess and the Justices off on speaking tours, summer teaching, or vacation and thus largely out of the public eye, and as Americans gradually adapt to the reality of the Court’s ruling (whether in support or opposition), now seems like a good time to return to Obergefell and consider the Court’s ruling.
What is
striking is the extent to which Justice Anthony Kennedy’s majority opinion and
the principal dissent authored by Chief Justice John Roberts are anchored in a
fundamental difference of opinion about same-sex marriage that has been part of
the debate from the beginning: were those couples seeking the right to marry
asking for a new right or simply for access to an existing right from which
they had been historically excluded?
Roberts argues
from a perspective which sees same-sex marriage as a new right. His entire dissent is, in essence, based on
this view, although it is not explicitly stated. Roberts’ frequent and repeated criticisms of
the majority for judicial activism, for reaching beyond the bounds of judicial
duty, his argument that marriage has always historically been defined as
between one man and one woman, and his reading of Court precedent all rest on
the belief that the majority created something new in its ruling. From this perspective, marriage has
traditionally been defined as between opposite-sex couples, it was defined this
way not as “the result of a prehistoric decision to exclude gays and lesbians”
(p.4) but “to meet a vital need: ensuring children are conceived by a mother
and a father committed to raising them in the stable conditions of a lifelong relationship”
(not to mention to address questions of paternity) (slip opinion, p.5). That history is important because when the
Court traditionally addresses claims of denial of fundamental rights, it looks
to the nation’s history and heritage as a way to determine whether that right
is indeed “fundamental”. Here, Roberts
argues, that right is not and cannot be considered fundamental when it did not
exist anywhere before the last decade of the 20th Century. That the majority rules it is a fundamental
right, from this perspective, can only be the result of judicial
overreach.
Likewise, such
a perspective shapes the dissent’s view of the Court’s precedent. Cases which involved aspects of marriage,
such as interracial marriage in Loving v.
Virginia or restrictions on marriage by individuals who were imprisoned or
who owed child support, involved access to marriage but did not seek to change
the fundamental nature of the institution as established by history. Those cases were thus rightly decided while Obergefell was not. But perhaps the clearest statement of this
perspective is the closing pages of the dissent addressing plural
marriage. The majority, Roberts argues,
“offers no reason at all why the two-person element of the core definition of
marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and
tradition, a leap from opposite-sex marriage to same-sex marriage is much
greater than one from a two-person union to plural unions, which have deep
roots in some cultures around the world” (p.20). Such an argument only makes sense if viewing
same-sex marriage as creating a new right where all assumptions might be open
to challenge. On the other hand, if what
granting same-sex marriage achieved was simply the opening up of a pre-existing
right to couples regardless of gender then the question of plural marriage does
not become an issue since the fundamental structure of marriage as between two
people is not challenged. (Of course, comparisons of same-sex marriage to
polygamy as well as less flattering comparisons have been made by opponents who
seem to want to disparage gay couples because of their lifestyle: I do not see
Roberts as falling into this category).
In contrast,
Kennedy’s opinion is rooted in a clear understanding that all the same-sex
couples involved in these lawsuits were requesting was access to a fundamental
social institution on the same terms as opposite-sex couples. Protecting the right of same-sex couples to
marry does not, in this view, change the nature of marriage, only open it up to
those historically excluded. It is not a
new right, but a very old one adapted to changing social circumstances,
adaptations which recognise discrimination where it may not have been seen
before (“The nature of injustice is that we may not always see it in our own
times,” slip opinion, p.11). Such
changes are not new, Kennedy argued, since marriage has historically changed in
other ways, including a move away from arranged marriages, coverture and other
sex-based classifications. Equally, the lesson
from the Court’s prior cases, he argued, is that the nature of marriage can,
and sometimes must, adapt to changes in broader society, as evidenced by the
overturning of laws preventing interracial marriage. Expanding marriage to same-sex couples is no
different than these previous changes, he argued.
Crucially,
though, viewing same-sex marriage as an equal right rather than as a new right places
the exclusion of individuals from that right in a very different context. Exclusion “demeans gays and lesbians,”
teaches that “gays and lesbians are unequal in important respects,” and
“impose[s] stigma and injury of the kind prohibited by our basic charter”
(p.17-18). Critics have compared Obergefell to the infamous Dred Scott (1857) ruling in which a
majority of the Court held that African-Americans were never intended to be
citizens under the terms of the United States Constitution (their argument, it
seems, is about how the Court often gets things wrong and makes “bad”
decisions). Kennedy’s emphasis on
dignity, respect, and the stigma of exclusion perhaps more closely echoes
Justice John Marshall Harlan’s 1896 dissent in Plessy v. Ferguson against segregation in rail transportation or
the Court’s landmark decision in Brown v.
Board of Education (1954) holding segregated schools unconstitutional. Exclusion, without good reason, is not
acceptable and, in Kennedy’s view, and that of the four Justices who agreed
with him, the reasoning offered by opponents of same-sex marriage could no
longer bear the weight.
Of course the
new right versus old right debate is not the only disagreement within the pages
of Obergefell v. Hodges. However, it is one not explicitly noted by
the participants. Viewing it this way
allows us to see how perfectly reasonable people might disagree on the outcome
of Obergefell without having to
resort to the kind of vilification of the other side that can be seen in some
of the commentary on the case and, unfortunately, in Justice Antonin Scalia’s
dissent. How people feel about the
Court’s ruling in Obergefell might
well depend which side they find most compelling in the new/old right debate
but considering the case on these grounds does at least provide a way of
understanding what happened away from the vitriol of the recent political
debate.
Dr. Emma Long is a Lecturer in American Studies at UEA. Stay tuned for a follow up piece on Obergefell soon...
Dr. Emma Long is a Lecturer in American Studies at UEA. Stay tuned for a follow up piece on Obergefell soon...
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