Cara L. Gallagher, weekend contributor
History happened yesterday. Will you remember where you were when the same-sex marriage decisions came down? I will. I was inside the Court when we all sat up somewhat shocked to hear the first case of the day was Obergefell v. Hodges. Again, I am lousy at predicting what cases we’ll get decisions on each day. This fact is already entered into the record. But because it was a decision of such importance, for the first time, I stopped writing, listened, and looked around to see how the audience, the public, were not only hearing but experiencing what I was hearing.
It wasn’t obvious from the start of Kennedy’s reading of the majority (made up of the four liberal justices) decision that it would come out on the side of the same-sex couples, many of which were in the Court to hear their case. He started off referencing the “millennia” of the institution of marriage. Those who listened to the oral arguments back in March will recall Kennedy used this word a lot to question Mary Bonauto, the attorney for the same-sex couples, on why the definition of marriage should be expanded to include same-sex couples when, for so long, it has been reserved to one man-one woman.
Kennedy quickly addressed the legal justification for supporting the same-sex couples. The majority ruled same-sex couples have a fundamental right to marry, just as opposite sex couples do. The Due Process clause and Equal Protection clause of the 14th Amendment protect this right and states must recognize the marriage licenses of couples. To the majority, the definition of marriage is not static and has never been. It has evolved from a time when women were married off to men chosen by their parents for financial gain, where their rights were subsumed to men (coverture), to one that primarily served procreative purposes, and finally to the version that exists today – marry who you love for whatever reason you want. Such personal choice has been celebrated in a patchwork system where some states allow gay marriage while others do not. But today’s decision mandates uniformity in legal doctrine. According to the majority, “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
Emboldening the majority’s defense of their opinion is the belief that same-sex couples with children deserve the dignity and eradication of stigma that will flow from not simply social norms and practices, but legal acceptance of their unions from the states in which they live. Yes, a federal decision on this matter quashes public debate and takes the political decision-making power out of the hands of states, some moving faster on same-sex marriage legislation than others. On that point, the majority said, “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’” (The latter quote is cited in the decision from West Virginia Bd. of Ed. v. Barnette)
It was at this moment that I stopped and looked around at the faces in the Court. Listening with smiles and quiet tears were several people sitting near me. I saw the petitioners and a member of the clergy sitting, perhaps appropriately, on opposite sides of the aisle in the general public area. Justice Stevens was in the Court as well. In the seats of the Supreme Court bar, which are front and center inside the Court, was notable same-sex marriage advocate and U.S. Deputy Assistant Attorney General at the Department of Justice Civil Rights Division Pam Karlan, Mary Bonauto, and Solicitor General Donald Verrilli. The Court often feels like it’s in an unnecessary state of lock down – especially on decision days – so the security marshals ban celebrations, cheers, cries, or any other expression. But the feeling was jubilation, complete and total satisfaction. Once dismissed, many near me stood up, hugged, and wiped away tears.
As jubilant and electrified as some people were, the subsequent dissent read by Chief Justice Roberts killed any and all enthusiasm in the room. Roberts may have read his dissent – one of four dissents written by every member of the minority group – to remind everyone that yesterday’s Obamacare ruling is not the liberal pivot you may have thought you were getting from the Roberts Court. I wrote about the potential for this pivot just last night after the King case was announced. In his blistering dissent that lasted as long, if not longer, than the time it took Kennedy to read the majority opinion, he openly threw shine on his bench mates: “Today, five lawyers have ordered states to change their laws,””Just who do we think we are?”
The power to decide laws defining marriage has and should forever be a power held by the states, derived from the people, according to Roberts’ dissent. “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.” This is the default response the conservative justices often give in federalist cases like this one.
What stung the most and hit the people who’d just been told they are equal in the eyes of the law the hardest was his final paragraph: “Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.” Further, “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
The “acceptance” line read to a class of people for whom acceptance both socially and constitutionally is so seldom protected by the Federal government, was the hardest to watch wash over those sitting near me.
Roberts may have gotten the last word in, but the same-sex and LGBTQ members and allies gathered together in the biggest crowd of people I’ve ever seen outside the SCOTUS, got the last laugh. They have legal protections rooted in two fundamental Constitutional principles. This decision came down at the perfect time as some cities celebrate their Pride Day this weekend and thousands of others will spend their celebrations at wedding receptions and enjoying honeymoons.
Follow Cara as she spends one more day covering the final three SCOTUS cases this term. @SupremeBystandr
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
To all the cake bakers and flower arrangers out there. First comes civil liberties and rights and then personal religious stuff. If you run a business open to the public therefore under civil laws, and a screamer comes in and asks you to put his and Bruce’s name on a cake then by law you should, as you would do so for Bruce and Sheila. Your religious stuff takes second place. This is America not Saudi Arabia.
To Ninian
The courts do not make laws they interpret and protect them. Do to the ambiguity of laws and the Constitution SCOTUS clarified that gays have the mentioned rights under the law. The laws regarding marriage already existed.
Like I stated in a previous post there is enough confusion to allow decisions to lean either left or right. There is enough overlap between state’s rights and federal rights to cause a kafuffle on just about anything. Such is this American human condition.
The great thing about this America is that even though it is burdened with lesser societally evolved members it drags itself and those kicking and screaming dissenters, forward.
Like the girl in Sweden said, it’s no big deal. It’s only a big deal to those who feel threatened by it. There the onus is on whomever feels threatened to work that out alone or with a therapist.
America is not a theocracy.
The SCOTUS is limited to its duty to assure that actions comport with law.
The People have voted on homosexuality and those votes have been rejected by corrupt judges. A vote of the People prevails over a “decision” by a court. .
Radical liberal collectivist activists have corrupted and manipulated the process allowing corrupt judges and courts to overturn those votes of the People.
Judges have twisted language to make Jonathan Gruber’s “stupid voters” believe that judges can overrule any and all votes of the People.
One ponders how long the Sovereign, the People, will allow the conspiracy of nullification and corruption, between radical liberal special interest groups and sympathetic, corrupt, subjective judges and courts, to persist.
Congress has the duty to impeach the Supreme Court and other corrupt judges for nullification, corruption, usurpation of power, “overreach,” treason, insurrection, etc.
To wit:
*****
Article II, Section 4
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
*****
1. Obamacare should have been rejected by the SCOTUS for technical flaws and returned to the Congress so the people could create a new law, or drop the issue, through their representatives, the Congress. SCOTUS chose to “LEGISLATE FROM THE BENCH” committing “High crimes and misdemeanors.” The SCOTUS clearly exceeded its legal authority and violated the Constitution.
2. Gay marriage should have been, and has been, voted on by the people, and the SCOTUS should have returned the issue to the People, the Sovereign, the Congress for legislation. SCOTUS chose to “LEIGISLATE FROM THE BENCH” committing “High crimes and misdemeanors.” The SCOTUS clearly exceeded its legal authority and violated the Constitution.
SCOTUS has committed these egregious crimes and attempted to rationalize its treasonous actions with infinite, convoluted obfuscation, rather than decide against these cases and return them to the Legislative branch for reconsideration, new legislation and approval by the ONLY power and SOVEREIGN in America, the People.
Clearly, the Supreme Court has rejected the sovereignty of the People and has assumed sovereignty in all matters.
These acts by the Supreme Court are egregious and shall not stand.
@justagirl and jill
I don’t usually knock lesbians and bi-sexual women. After all, they aren’t out there killing themselves off in large numbers due to gross negligence. As a group, you don’t find getting every kind of disease under the sun from all the drugs and promiscuous hookups. Plus:
As an abormal person myself, I try to direct my criticism where it’s needed and justified!
Squeeky Fromm
Girl Reporter
This is a great decision. It is one precisely made for the judiciary and NOT the legislature or the ballot! Civil rights were NOT enumerated to protect the rights of people we like or we approve of. They protect everybody or no one.
“The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’” is all that need be said about the matter case closed move on.
Regarding Roberts’s “it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.”” I’d trade that any day, if such a trade could be had or were necessary, (see above,) for the constant politicization and political football making and smearing that the ‘winning the true acceptance’ would be. This is what the courts are for. the court stands in my stead, so I don’t have to. ‘Who do they think they are?’ I think they are JUSTICES OF THE SUPREME COURT DOING THEIR JOBS that’s who. If you can’t stand the heat get the hell out of the kitchen.
Much of Roberts’s dissent is an excuse for cowardly inaction. As if he want’s us to believe he chose the choice that would have been the result of what would happen were the court not to hear the case, as it shouldn’t have, in his most humble opinion. We are supposed to believe / infer / forgive him for. Well you can’t have your cake and eat it too, er, Chief Justice of the Supreme Court of the United States of America. Whining doesn’t befit the job.
Though I was expecting Roberts, he’s made his bed, I don’t care. I care about my brothers and sisters and their families who now have equal access to the law, I care about their families and the security this provides and that History will mark this as a watershed and END to this divisive contrived ‘Culture War’ issue. End. Don’t want gay marriage? Don’t marry a gay. So simple. My rights / your nose, 14th amendment. DONE.
The homophobes and theocrats in the world, my country, and even on this thread, will either be swept along in the fullness of Time or left behind, again that does not affect MY RIGHTS today, nor those of everyone else. Including theirs.
Roberts is wrong, the Constitution made this. I celebrate the Constitution: It just worked.
@Ninian
You said,
“We saw what happened to American citizens during the McCarthy Anti-American Hearings…. that’s the nearest thing I can think of which challenges the Constitution and Bill of Rights which seemed to be overuled / misinterpreted as a matter of political expediency? ”
Huh??? That was a good thing, not a bad one! My goodness, let’s put this in context for you! It’s 1940 and England is getting hammered by the Luftwaffe! Factories are turning professional grade Ninja assassin-lever quality slingshots to make up for the lack of guns. (Because the American ships haven’t arrived yet.) The Krauts are building boats in the channel to come over and finish it off!
There is a huge group of Nazi sympathizers in Britain’s film industry, and they are trying to make a film called, Tommy Got His Gun! (or arquebus), wherein a British soldier goes to war and loses his eyes, and voice, and his arms and legs and can’t play with himself anymore, and the only nurse who gives him relief just got transferred, sooo he lays there hour after hour in a Priapic state, being spoon fed pablum until the day he dies, which is waaaay in the future.
What’s Churchill to do??? No way future draftees and young British men need to see that kind of crap! Crikeyl They would all become conscientious objectors or pretend to be gay. Sooo, wouldn’t he be remiss if he didn’t start a Parliament Un-British Activity Committee? And chase the Nazi scum sympathizers out of Pinewood??? That was the situation America was in.
Squeeky Fromm
Girl Reporter
@jakeandcrew No he did not. Jesus was asked a question regarding divorce, not marriage. Read the context carefully and closely.
The pharisee was not asking about monogamy. He was asking if it was lawful to divorce a wife for any particular reason. Jesus replied exactly as you indicated, saying that marriage is between a man and a woman, not to be torn asunder by anyone.
Note that when Jesus spoke of that, he wasn’t clarifying it as a monogamist relationship. Do remember that he descends from a line of kings who were polygamous. If polygamy were banned, Jesus would not be born under nor inherit the bloodlines of those kings. God would have none of it if He said that monogamy is the only way; if polygamy be a sin, why then Jesus be born of David, of Solomon? Hmm?
The adage that “God never changes” shows just how much I really despise people who keep cherry-picking certain verses to fit an incorrect, corrupt dogma.
This is the verse with the question –
“Some Pharisees came to Jesus, testing Him and asking, ‘Is it lawful for a man to divorce his wife for any reason at all?'” (Matthew 18:3, verses 4-6 quoted above)
In answering this specific question about divorce, Jesus talked about marriage as a whole. It’s clear that He is saying marriage is between one woman and one man (which equals 2), and the two shall become one flesh, and that this union should not be torn apart.
Yes, David and Solomon were polygamists. David was also an adulterer and a murderer – and yet he was called a man after God’s own heart. Jesus’s lineage also included a harlot (Rahab), a foreigner (Ruth), and a daughter-in-law who pretended to be a prostitute in order to be impregnated by her father-in-law (Tamar and Judah).
His lineage is full of fallen human beings who commited sin. It had to – because we ALL are sinners. The beauty of this is that He came anyway – to die for our sins, ALL of them. It’s not about our “goodness” – it’s about His grace.
jakeandcrew – if you believe that Mary was conceived without man then Jesus has lineage only through Mary, not Joseph, or only lineage through God.
Paul,
Genealogies were very important in Jewish history, and Joseph was Jesus’s legal father. The gospel of Matthew begins with the genealogy of Jesus from Joseph’s lineage. (There is another genealogy in Luke 3 that is thought to be from Mary’s lineage.)
In Matthew’s genealogy, every single entry (41 generations), includes the words “the father of…” For instance, it begins like this in verse 2 –
“Abraham was the father of Isaac, Isaac the father of Jacob, and Jacob the father of Judah and his brothers…”
And it continues on from there in the same manner.
But when it gets to Joseph, it’s very different –
“Jacob was the father of Joseph the husband of Mary, by whom Jesus was born, who is called the Messiah.” (verse 16)
It doesn’t say Joseph was the father of Jesus. It says Joseph was the husband of Mary, and Mary was by whom Jesus was born.
old nurse,
There is only one Jesus Christ, as revealed in the Scriptures, and we don’t get to pick and choose the parts we like or don’t like.
Jesus, when questioned about marriage and divorce, said –
“Have you not read that He who created them from the beginning made them male and female, and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So they are no longer two, but one flesh. What therefore God has joined together, let no man separate.”
Jesus affirms marriage as one man and one woman, the way that God ordained it to be.
That wedding in Cana, where He turned the water into wine, was a wedding between a man and a woman.
He certainly did. I was just riffing on the concept.
No doubt old nurse. The Jesus that I would like would make me with 10% body fat, wealthy and living in a nation that actually had the rule of law and not of men. Unfortunately we don’t get to make God what we want, God is or rather God says, “I Am.”
.Actually, the Jesus that I like would not only bake the cake, he would make the number of wine bottles increase exponentially so that the party could go on for days.
old nurse – I believe Jesus was alleged to have turned water into wine. Nothing was said about wine bottles.
It is interesting, their are those invoking the teachings of Jesus Christ and his message of love and equality who are conveniently ignoring his entire message that we should love the sinner but not the sin. This has been profoundly demonstrated by the people of Charleston recently and most businesses that open their doors for service. Would the bakery run by Jesus Christ bake a cake to celebrate a same-sex marriage or would he simply offer the sinner (a) cake and encourage them to repent?
“Equality always wins. And when it does, the victory is in a very real sense a triumph for the moral teachings of Jesus Christ, whether or not the reformers view their efforts in religious terms. No institution — not even a church founded in Christ’s name — can withstand the subversive power of his message. Confronted by critics preaching equality, defenders of the institution’s authority and traditions invariably end up sounding like modern-day Pharisees upholding abstract rules and ancient privileges against a gospel of love and universal dignity. It’s fruitless.”
~Damon Linker
http://theweek.com/articles/557089/how-irelands-gay-marriage-vote-exposes-catch22-modern-christianity
Again Marco you miss the point.
Businesses are not denying services BECAUSE of the sexual orientation of their customers. They are denying services that force the business to actively participate in celebration of that orientation and thus infringing on the business owner’s natural right of conscience.
Thank you for the wonderful view from inside the courtroom, Cara.
Although I’ve not yet read his dissent, I know Justice Scalia’s greatest fear has now come true: the opening of the floodgates to polygamy! Uh, not in our lifetimes for this red herring, considering the time it took to recognize the fundamental right to marry (remember the trial court’s diatribe in Loving v. Virginia?) and now same-sex marriage as part of that right.
The only thing that is static about substantive due process is the Holy Bible through which some Justices clearly interpret it.
“Olly, morals don’t come from religion.”
Marco,
I never claimed they did. Religion provides moral absolutes and where that religion violates natural rights; natural rights should prevail. In the absence of religion then the concept of right and wrong is entrusted to a people that are enlightened by the principles of natural rights or even reason. Enable those people to reject both religion and natural rights and then you’re left with moral judgements from reason alone. At that point, nothing throughout the history of mankind has proven that relative morality that comes from man’s capacity to be reasonable has ever secured civil society from its own destruction.
We are currently at that point where we have no moral compass, or to be more accurate, those guiding our nation aren’t bound by any principles other than that which sustains their own existence. We are still a nation of religious people but we are holding on by our fingernails with a belief in inalienable rights. When right from wrong is no longer a shared moral absolute then all bets are off that our republic will survive.
Olly, here’s the problem with your last post: religious beliefs play no role in complying with the 14th amendment. Why?
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
That means very clearly that if you’re in business, a) you have a business license issued by the local jurisdiction, and b) by denying any service or product because of their sexual orientation violates the 14th amendment. Period!
Marco,
How can the 14th Amendment negate the 1st Amendment?
Isaac said –
“However a cake baker who is performing their trade in public is obligated to treat gays to the same level as any other customer. A mortgage broker is obligated to treat the couple to their combined advantage. If the cake baker does not like gays then they should practice their trade within the confines and dictates of a private arrangement with customers, in other words not ‘open for business’ with all the benefits of a public enterprise.”
Liking or not liking gays is not the point. A florist (in Oregon, I believe) had gay customers whom she considered her friends. When asked to provide flowers for their wedding, she kindly told them she could not do that, because the marriage, not the people personally, but the marriage of two men was contrary to her own religious and moral beliefs.
They had to drive to another florist that had no such convictions, at the cost of less than $10 of gas. On that basis, this florist is being sued and fined right out of business.
When business owners are forced to participate in a celebration of a ceremony that goes against their own beliefs – or face penalties, fines, maybe even jail – how is that liberty? How is that the freedom of thought and ideas that our founders desired?
“However a cake baker who is performing their trade in public is obligated to treat gays to the same level as any other customer.”
Isaac,
Your assumption is that businesses deny services because someone IS a homosexual. The issue has not been about a bakery denying service on the basis of sexual orientation simply because they disclosed they are part of the LGBT community. You want a cake, no problem. You want a loan, no problem. Up to that point no request that one violate their moral conscience is evident. The moment the customer requests that a business provide a product or service that forces the business to violate their right of conscience then that is where the business is constitutionally protected to say no. They are welcome to request as many cakes as they can afford or as many loans as they qualify for. Even if they say they want 50 cakes for a same-sex ceremony or a loan for a same-sex household; the business must provide the product or service if it is within the normal capacity of the business. If they want the business to alter its model to accommodate the special circumstances of the request then the business has the right to refuse the service. Otherwise, every business MUST accommodate every special request regardless. That is no longer a free market or a people secure in its natural rights.
It’s wonderful to see the celebrations and hear and see the joy! It’s been an amazing week, which was desperately needed after the tragedy of last week.
http://cdn.abclocal.go.com/content/creativecontent/images/cms/807257_630x354.jpg
@ Justagirl
The gay people and couples [men and women] that I know act normally. No swishing around or exaggerated mannerisms. They are just people who do the same things as everyone else. Good community members or people who just mind their own business. They belong to the High School Boosters. Attend church. Go to the library events. Belong to Rotary and the Chamber of Commerce
The Principal at our small town high school is one half of a lesbian couple.Everyone knows this. No one cares or gives her any flak. She is a good principal and very well liked. Her partner runs a successful landscaping maintenance business. She has to turn away clients.
If the activists and the “Queen” types weren’t shoving their agenda in our faces and into the schools most people really wouldn’t give a rip about homosexuality and the acceptance of SSM would have happened much sooner.