This is a beautiful but restless time of year for SCOTUS junkies. The gorgeous, late summer sun sinks faster out of the sky signaling not only the end of the (best) season but also the nearness of the next Supreme Court term. While this reality thrills us, it gives pause and arouses questions. Is it possible to ever have a term as exciting as the last? There’s no way, right? Truth be told, we recall having the same concerns after the close of the October 2011 term, so, yes, there’s a chance.
Rather than stare at the calendar like a watched pot pre-boil, we thought we’d pull out the highlight reel and review some of the big cases from June, starting with Obergefell v. Hodges, aka the same-sex marriage case. In the aftermath of the victory for gay rights, it was easy to overlook the complexities of the decision and focus solely on celebrating or cringing (if you want an inside view of the Courtroom read this post). But it was much more complicated than calling it a simple win or loss.
From Kennedy’s majority opinion to the range of dissents – yes, four dissents – there’s much more to unpack. Thus, below are three arguments that challenge and support the Obergefell decision and highlight the central questions in the case.
Support:
• The 14th Amendment was passed for exactly this case: to provide due process and equal protection to all citizens, regardless of the state in which they live. Just as the Court has previously used this amendment to strike down racial and gender discrimination, gay marriage equally merits the same consideration. Moreover, such protection ensures that no matter how long it might have taken for one of the remaining fourteen states to legalize same-sex marriage, gay couples are guaranteed those rights. As summarized by Kennedy, “The very reason that we have a Constitution is that some rights are too important to leave up to the democratic process.”
• From the perspective of public opinion, no matter how you cut it, the Court sided with the majority of Americans. Is it the Court’s responsibility to rule on behalf of the majority? Absolutely not. But statistically speaking, at least the numbers back up this ruling, especially given Millennials are growing older and their increasingly progressive views will continue to shape future political discourse.
• Last but not least, Kennedy’s soaring language impressively closed the majority opinion. The excerpt said it all: “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 civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Challenge:
• While the question of marriage equality across the country has now broadly been decided, this ruling poses a series of new challenges towards the idea of religious liberty. Can gay couples adopt or serve as foster parents? Can a religious college that provides special marriage housing accommodations exclude gay couples? We also can’t forget the Court’s Hobby Lobby ruling from 2014, a major victory for proponents of religious freedom and RFRA, giving ample reason to question how these questions may be litigated in the future.
• Marriage as an institution has been steeped in tradition over thousands of years and now – in the stroke of a pen – the Court has turned much of its history on its head. This is unquestionably a decision that emboldens the notion that this Court is guilty of judicial activism. Every single one of the dissenting opinions highlighted exactly how the majority usurped the legislative process from elected officials to an unelected judiciary, a notion that most consider anathema to American democracy.
• Perhaps most provokingly, Roberts’ dissent offers pointed criticism that might even strike the hearts of gay marriage supporters (further underscored by the fact it was his inaugural dissent from the bench). If the overarching goal is to foster a culture of acceptance and tolerance of gay couples among Americans, Roberts posits that going through the legislative process is superior to a radical decision from the judiciary. He writes, “stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
We hope you enjoyed our second look at this case. We’ll rehash a couple more before the OT15 kickoff, October 5th. Happy Labor Day, Turley-ians!
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