The Forbidden Fountain – An Obergefell Parable

Corwin spent a troubled night trying to understand why his Christian friends did not want to provide their services for same-sex weddings.  They were good at what they did; photographers, bakers, dress makers and the like.  They seemed like good people.  They went to church and talked about how they loved God.

As he drifted back to sleep, Corwin found himself walking along an abandoned road.  He came upon an old playground and, to his surprise, his Christian friends were there playing with a group of African-American children.  The playground appeared to be someplace in the southern United States and the time was around 1965.  The swings and slides were old and you could still see that the drinking fountains had been labeled “White” and “Colored” from the days of “separate but equal.”

He stood and watched his friends play with the children for a long time and the day began to grow warmer.  The children became thirsty and walked to the drinking fountain that was labeled “White” and his friends stopped the children and took them to the drinking fountain labeled “Colored.”  He was confused and angry.  Didn’t his friends know that the law had changed?   These children had every right to drink from whatever fountain they wanted.

Corwin walked onto the playground and his friends welcomed him and asked if he would join them.  In his anger, he criticized the man for forcing the child to follow the old ways of discrimination.  Didn’t he know that the law had changed?  Didn’t his God call him to a higher standard than that?  His friend just said, “This is your first visit to the playground?  Let me explain.”

He told Corwin that the playground had been abandoned after the law changed.  It was the only place these children had to play before and they were left without a safe place.  So, his friends had been slowly reclaiming the playground, fixing the equipment, and keeping the grass mowed.  They also came over to play with the children several days a week.

“Yes,” he said, “that was great, but what about the drinking fountain?  How could you force the children to drink from the Colored fountain?”  His friend explained that the two fountains were fed by separate water lines.   They believed the water line to the White fountain had developed a leak and the water was contaminated.  Children who drank from that fountain had sometimes become sick.  They wanted to turn the fountain off.  But, the city insists that the water is fine and won’t let them turn the water off.  Luckily, the water line that fed the Colored fountain was still good and the water was fresh.  The children could drink all they wanted from that fountain and no one ever got sick.  “Now,” he said, “we ask them to drink from the old Colored fountain because we know something about the water that the children don’t know.”

The playground and children faded away.   Corwin was standing with his Christian friend outside the bakery that his friend owned.  The baker had recently told a gay couple that he would not bake the cake for their wedding.  Corwin couldn’t understand why.  Didn’t his friend know that the law had changed?  Why was he clinging to the old ways?  Does the Bible say that a baker can’t make a cake for a gay wedding?

The baker explained that the question isn’t that simple.  The Bible says that intimate relations between two people of the same sex is a sin.  And, if a person chooses to sin intentionally over and over again, they could be separated from God forever.  To the baker, that is the worst thing that could ever happen to someone.  “So,” Corwin said, “to you, helping a gay couple with their wedding is like helping a child drink from the contaminated fountain?  You don’t know for sure that it could hurt them, but you believe that it could be very serious and you don’t feel right about it.”  The baker nodded.

Corwin was back in the park.  A child was pulling on his hand and asking for help getting a drink from the White fountain.  Corwin reached down, picked her up, and turned the handle.  The water bubbled up cool and clear.  It didn’t look bad.  He paused.  “You know, my friend the baker thinks this water could make us sick.  I’m thirsty too, how about if I carry you to the other fountain and we get a drink there?’

To go to the Oberfefell resource page, follow this link.




Obergefell – The Dissenting Opinions

We won’t spend the time going over the dissenting opinions that we spent on the majority opinion.  The dissenting opinions make for interesting reading if you want to get into some of the legal rebuttal.  But, they aren’t the law.  I will give an overview of the dissenting opinions   If you see something interesting in the summary, you can download the decision in PDF format by following the link at the end of the post and read the part that interests you.  The “sound bite” wars that have popped up over this decision have been unflattering for both sides.  If you want to be part of the dialog, take the time to read the decision, including the dissents, and understand both sides.

Chief Justice Roberts.  At 29 pages, Justice Roberts’ dissenting opinion is as long as the majority opinion.  Personally, I found it easier to follow the organization in C.J. Roberts’ dissenting opinion.  Your mileage my vary.  After an introduction similar to Justice Kennedy’s, he begins his argument with the “keystone” Due Process argument used by the majority.  The says that the Solicitor General of the United States, though supporting the Petitioners, “disowned that position [the Due Process Clause argument] before this Court.  The majority, nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.”    He then cites examples of how the approach used by the majority in Obergefell had been used by the Court in the past.  If you read the dissent and are familiar with American legal history, you will recognize some of the cases and, I think, agree that the decisions he cites were later recognized as flawed or just wrong.  He also responds to the “definition of marriage” line of cases like Loving and the “privacy” line of cases, like Griswold and explains why he does not believe they apply in Obergefell.

Justice Roberts raises two points that I plan to talk about in future posts.  The first is that the majority’s reasoning can be applied with equal force to polygamous marriage.  I had also reached that conclusion before I finished reading the majority decision.  The second is that, by resolving this issue through the Court, they have short circuited the process that could have worked out accommodations for religious practice.

Justice Scalia.  Justice Scalia begins his dissent with “I join the Chief Justice’s opinion in full,  I write separately to call attention to this Court’s threat to American democracy.”  He makes a compelling argument and calls the decision a coup.  You may not agree with him, but you don’t need to guess what he is thinking.

Justice Thomas.  Justice Thomas begins his dissent with “[t]he Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation is built.”  There were two points that I thought Justice Thomas made well.  The first is that the focus of the Due Process Clause cases has been to prevent the States from taking rights without due process of law and not to force the States to grant rights as the clause is being applied in Obergefell.  The second is that “the majority’s decision threatens the religious liberty our Nation has long sought to protect.”

Justice Alito,  Justice Alito begins his dissent with “[u]ntil the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.  The question is these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them.  It does not. The Constitution leaves that question to be decided by the people.”

The theme of all the dissenting opinions is that the States have been given the responsibility to define marriage and these cases do not present a constitutional issue.  Again, I encourage you to read them.

As I have said earlier, there are a few more topics I would like to cover, like the application of the case to polygamous marriage and whether their is a need to accommodate sincerely held religious beliefs.  A lot of “sound bite” thinking has surfaced on both sides of the issue.  Folks are trying to ward of using Obergefell to support polygamous marriage.  They would like to see the decision as an “adjustment” in our view of marriage and not a seismic shift.  As you will see, I fall into the seismic shift camp,  Also, it seems clear to me that some of my Christian friends don’t completely understand how this case does, or may, affect their religious freedom.  There has been talk about “civil disobedience.”  Please, don’t start burning anything just yet.  If we will stop shouting and listen, there may be a chance to be part of the discussion.

If you have been reading along and have questions or comments.  Please leave them.  I would also like to know if you have ideas for other topics to cover.

To get to the page of Obergefell resources, including other posts and a link to the opinion, please follow this link.


Obergefell – The Majority Opinion – The Equal Protection Argument and Cleaning Up Loose Ends

In my last post, we covered the keystone argument of the majority opinion.  Justice Kennedy said that, in defining the right to marry, the Supreme Court had identified essential attributes of the right based in history, tradition, and other constitutional liberties inherent in marriage.  He then described each essential attribute and concluded that the attributes applied with equal force to same-sex marriage as to opposite-sex marriage.

While Justice Kennedy says that the decision is based upon both the Due Process and Equal Protection clauses of the 14th Amendment, the Equal Protection argument is given very abbreviated treatment.  My Constitutional Law professor would say that he gave it “short shrift.”   He argues that there is an interrelation of the two protections, each helping to supplement our understanding of the other.  The dissenters were not persuaded by the discussion and I don’t have the expertise in constitutional law to have my own opinion.  He gives several examples of cases in which the two clauses protected different shades of rights or the same rights in different ways.  It is an interesting discussion that most of us will need to take at face value.   The bedrock of the decision is the analysis of the four essentials in the Due Process argument.  When the Court returns to this question again, that is where it will look for guidance.

I will take the final points in the decision out order now, because it will make more sense to conclude the post with the conclusion of the decision.

In Sections IV and V of the decision, Justice Kennedy addresses the second question the Court agreed to answer and three remaining issues that, apparently, had been raised in the oral arguments and over 140 briefs that were filed in the case.  First, he responds to the Respondents’ (the States opposing same-sex marriage) arguments that the issue of same-sex marriage should be returned to the state democratic process for the people to decide.  Justice Kennedy has already responded to this argument in the decision and he simply repeats the response here.  Basically, the Court has found a Constitutional right to marry and a Constitutional right trumps the democratic process.  “This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.'”

Next, Justice Kennedy gives a nod to the religious objections to same-sex marriage.  Admittedly, religious belief is not and cannot be a consideration in reaching a legal decision.  But, it is a tender spot that he felt the need to address.  In my opinion, he didn’t address it well.  “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost sincere conviction that, by divine precepts, same-sex marriage should not be condoned.  The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  Or paraphrased, the religious folks also have the constitutional right to continue to believe in their old outdated view of marriage.

While, as a Christian, I appreciate Justice Kennedy’s kind and condescending comments, he misses the point made by the States and emphasized by the dissenting opinions.  The issue of same-sex marriage includes some complicated issues.  I will talk about the issues in detail in later posts. A continued public debate of the question of same-sex marriage through the democratic process would have provided a forum to resolve those issues together.  That discussion has now been cut off and any solutions will need to come through the more expensive and less responsive practices of litigation and legislation.

Finally, Justice Kennedy concludes with a short discussion of the Court’s holding that States must recognize same-sex marriages validly performed out of state.  This was the second question that the Court agreed to take up and the decision follows logically from the finding that there is a constitutional right to marry. But, in the course of his discussion, he feels the need to knock down the States’ argument that “allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages.”  Wait,  What?  REALLY?  Out of all the oral arguments, over 140 briefs and the best legal minds of the country arguing this case, this is the second best argument that Justice Kennedy could find to knock down?  (The first is that the decision should be left to the democratic process, which he knocked down several times.)  He gives this discussion about a page in the decision and I really don’t know what to make of it.  If it is really the second best argument he heard, then the States did a poor job.  It feels like he just wanted to knock down a ridiculous argument and make the Respondents look bad,

This brings us back around to the Court’s finding and holdings.  The Court found “that the right to marry is a fundamental right inherent in the liberty of the person,  . . .”  The Court then applied its finding to the first question it agreed to answer and held that “under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and liberty [the right to marry].”  The Court also held that the Constitution requires States to recognize same-sex marriages validly performed out of State.

In the next posts, we will look at the dissenting opinions.

To read all the posts in this series and for other resources, including a copy of the decision in PDF format, please follow this link.


Obergefell – The Majority Opinion – The Due Process Argument – Part 2

We finished the last post as Justice Kennedy set up the next section of his argument in Obergefell.  He explained that the Supreme Court had developed the legal tenets that it used over the years to discover previously unseen constitutional rights.  When the Court applied those tenets to a case in 1972, the Court did not believe that same-sex marriage presented any federal question for it to consider.  But, as Justice Kennedy went on to explain,  “[s]till, there are other more instructive precedents.  This Court’s cases have expressed  constitutional principles of broader reach.  In defining the right to marry, these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond [he means “marriage”].  And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected.”

As we move into a discussion of these four principles, there are two questions to ask yourself as you read.  The first is whether you agree that the Court has identified principles that are central to our definition of marriage.  Second, do you agree with Justice Kennedy that the principles “compel the conclusion” that same-sex couples may exercise the right to marry?  This is a summary of the four principles.

  1. “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 . . . decisions about marriage are the most intimate that an individual can make.” In light of Justice Kennedy’s introductory discussion of the history of marriage, changing from arranged relationships to relationships based romantic love, it is difficult to argue with this conclusion.  It is an accurate reflection of our culture’s current view of marriage.
  2. “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”   Marriage is uniquely and specially designed to support the union of two people who want to live in a committed relationship.
  3. A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childbearing, procreation, and education. The rights and responsibilities associated with marriage are an important foundation for the family that is created by the relationship.
  4. Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.  Webster defines “keystone” as  the wedge-shaped piece at the crown of an arch that locks the other pieces in place.”  So, applied here, marriage is one of the institutions that locks our social order in place.  Justice Kennedy also quotes Alexander de Tocqueville, who said that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress. . . . For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. . . .These aspects of marital status include: taxation [at special rates]; inheritance and property rights; rules of intestate succession [what happens when a spouse dies without a will]; . . . hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates . . .” and the list goes on.

He concludes this section by finding that, In exchange for people’s commitment to enter into marriage, “[t]he States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.”

So, if we put together the reasoning from the four points that Justice Kennedy has enumerated, we have this argument:

  1. Two people who love each other have the Constitutional right to decide if they want to live in a committed relationship.
  2. Marriage is uniquely and specially designed to support the union of two people who want to live in a committed relationship.
  3. Marriage as an institution safeguards the other rights and responsibilities that flow from the committed relationship, like children and families and the long list in the quotation above.  All of which are critical to our society,
  4. Because marriage is critical to our society, society has pledged to give certain special rights and benefits to those who enter into the marriage relationship.

Justice Kennedy begins his conclusion to this section by stating “[t]here is no difference between same- and opposite- sex couples with respect to this principle [The principles are equally valid and will accomplish their purpose of ultimately strengthening society regardless of the gender of the parties is the marriage.]  Yet, by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.”  He then explains that “the limit of marriage to opposite-sex couples may long have seemed natural and just. but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”  These words underline what he has said before in the decision; marriage is a right that is endowed by the Constitution upon every citizen of the United States and the individual States may not limit the right only to same-sex couples.   He recognizes that people acting on “decent and honorable religious or philosophical premises” have passed laws excluding same-sex couples from the same legal treatment that opposite-sex couples receive in marriage.  But, because those laws conflict with the fundamental Constitutional right to marry, they cannot stand.

To borrow from Justice Kennedy’s “keystone” argument above, the application of these four principles to same-sex marriage is the keystone of the majority decision.  All that has led to this analysis is setting the stage and all that follows is cleaning up the loose ends.  If another individual challenges whether a state has unconstitutionally denied the him or her the right to marry, one would expect the Supreme Court to us this set of principles to analyze the claim.

In the next post, we will review Justice Kennedy’s Equal Protection argument supporting same-sex marriage, cover his concluding comments and observations, and finish the discussion of the majority opinion.

To read all the posts in this series and for other resources, including a copy of the decision in PDF format, please follow this link.



Obergefell – The Majority Opinion – The Due Process Argument

My goal is writing this series of posts on Obergefell is to share what I am thinking about the decision and what its effects might be.  I definitely don’t have a better understanding of the law in this area than the Supreme Court.  And even they can’t agree on what law applies to this issue and how it applies.    I hope that you will read these posts, read the decision, think about its implications and leave questions and comments.

After setting the historical background discussed in the prior post, Justice Kennedy begins the Court’s legal analysis.  It is here that I had my first question about the structure of the argument that Justice Kennedy is forming.  Is his introduction the background for the decision or the foundation for the decision?  If it is a background, then, like the background in a painting, its purpose is to put the main subject in context, but it doesn’t provide critical information.   I think the introduction is more foundation than background.  He seems to mix together the developing social theories on marriage and sexuality with past Supreme Court case law like he is mixing concrete.   The parts of law and sociology that are permitted into the foundation are filtered by the “principles” set out in the introduction.  I say this because the points he raises in the introduction appear again in the body of the decision.

The Due Process Argument

[As I write these posts, I will be quoting sections of text from the decision.  Rather than using block quotations, which would be formally correct, I will put the quoted text in blue and use quotation marks.]

Justice Kennedy begins section III of the majority opinion.

“Under the Due Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of life, liberty, or property, without due process of law.’  The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights [the decision cites the Griswold case here]. In addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs”  The 1965 Griswold case cited by the court struck down a state law forbidding a married couple to use birth control.   At the time, Griswold was seen as an expansion of the Due Process clause.  But, Griswold, was an expansion that most American’s accepted.  I don’t know that American married couples knew they had a constitutional right to use birth control in 1965.  But, I am guessing they welcomed the information as good news.

Justice Kennedy uses the Griswold case as an example of when the Court identified a new fundamental right that had not previously been recognized.  Justice Kennedy goes on to say, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.  That responsibility, however, ‘has not been reduced to any formula.  Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”  To paraphrase, just as the Supreme Court identified the previously unknown right to use birth control,  it has an ongoing duty to keep finding previously unidentified rights.  Further, there is no magic formula for how these rights are determined, but the Court must use its best judgment to figure them out.  And, when the Court has found a fundamental right, the State must accept the right as being constitutional and, therefore, invalidating any state law that conflicts with it,

The Court then explains that it has, over time, developed some tenets. or guidelines, of constitutional interpretation that it uses to identify these previously unseen rights.  When these tenets are applied to marriage generally, the Court has found a constitutional right to marry.  The Court has found that the right to marry cannot be “burdened” (prevented) for certain reasons, for example, because a father is behind in his child support payments or because one of the people wanting to be married is in prison.  But, the Court, like many institutions, had “made assumptions [about marriage] defined by the world and time of which it is apart,”  and in 1972 found that the exclusion of same-sex couples from marriage did not present a substantial federal question.  In other words, in 1972,  the Supreme Court didn’t think that applying the above-referenced tenets of constitutional interpretation to the topic of same-sex marriage would yield any previously undiscovered rights.

But, as Justice Kennedy explains, the trail didn’t end in 1972, “[s]till, there are other more instructive precedents.  This Court’s cases have expressed  constitutional principles of broader reach.  In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond [he means “marriage”].  And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected.”  Justice Kennedy is referring here to the four principles of marriage that will follow next and round out the Due Process section of his argument.  He says that, when these four principles are applied to same-sex marriage, “[t]he analysis compels the conclusion that same-sex  couples [emphasis added by me] may exercise the right to marry.  The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples [emphasis added by me again].”

As we move into a discussion of these four principles in the next post, there are two questions to ask yourself.  The first is whether you agree that the Court has identified principles that are central to our definition of marriage.  I am not a constitutional law scholar.  You probably aren’t either.  But, you and I can both read these principles and ask if they make sense to us.  The second question to ask yourself is whether the four principles necessarily apply only to “couples.”  Is Justice Kennedy suggesting that there is something mystic  or special about two people in a marriage relationship?  Or, is it just that the question before the Court, and therefore the only question the Court can answer, is limited to couples?

I have tipped my hand, so this is a spoiler alert.  You can read the Court’s holding at the bottom of page 22 of the Majority Opinion.  Did you find the word “couple?” in the Court’s conclusion that marriage is a “fundamental right”?  I didn’t either.  The word “couple” is used in the two holdings that follow because, in this case, the Court was only addressing the question of whether there was a constitutional right that applied to couples.  So, what happens when the Court gets a case asking if the fundamental right to marriage is available to polygamists?  Stay tuned for Justice Roberts dissenting opinion.

Please leave comments and questions.

Please click here to get to the landing page for earlier posts on Obergefell and other resources.


Obergefell – Majority Opinion – Part 1

If you have read the first two posts in this series, you know that Obergefell is the recent U.S. Supreme Court decision legalizing same-sex marriage.  If you haven’t read the first posts in the series, I have set up a landing page with links to the earlier posts and a link to a PDF version of the decision.  If you are interested in this discussion and keep reading along, it will help you if you have a copy of the decision to read sections when I refer to them.  You can find the link page here.

I need to talk about one more thing before we begin.  The Court uses the term “homosexuality” when describing the sexual orientation of people who are gay and lesbian.  I’m not comfortable with the term for two reasons.  First, my classmates in college who were lesbian objected to being called “homosexual.”  They believed that the “homo” in homosexual was used in the same sense as the “homo” in homosapien.  Therefore, it was a term that should be used only to describe men.  The correct term for women was lesbian.  I know that “homo” in homosexuality really means “similar” as in a homogenous group.  But, they made a big impact on me and I have carried that sensitivity for decades.  Second, though the word “homosexual” began as a clinical term to describe same-sex attraction, it has taken on a derogatory sense.  Maybe I am being overly sensitive and politically correct, but I promised to be honest with you. That is all to say that I will use the word “homosexual” throughout my posts on the case because the Court uses the word in the various decisions.   I’ll deal with my personal discomfort and if you are offended by the word, I apologize and at least you know that I don’t mean to use it offensively.

The majority opinion was written by Justice Kennedy.

Section I of the decision sets up what is called the procedural posture of the case.  The Court explains briefly how the 14 cases came to the Court and the two questions that the Court has agreed to answer.

Section II gives some historical background.  Justice Kennedy begins by saying, “Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.”  He then begins a seven-page survey of society’s understanding of marriage and society’s understanding of homsexuality. He says of marriage that “[t]he lifelong union of a man and a woman has always promised nobility and dignity to all persons without regard to their station in life.”  He admits that, “historically, marriage has been the union of two people of opposite sex.  That history is the beginning of these cases,  The respondents [the States arguing that marriage should remain a union between people of opposite sex] say it should be the end as well.”

Justice Kennedy then talks about the States’ assertion that it would demean the timeless institution of marriage by extending the status to two people of the same sex.  He says that, far from wanting to devalue marriage, the petitioners [the 14 people who want the law changed] seek marriage for themselves because they respect – and need – the privileges and responsibilities that marriage carries with it.”  He concludes this section of the introduction by telling the stories of three sets of the 14 petitioners.

James Obergefell and his partner. Arthur, lived in Ohio.  Arthur was diagnosed with ALS in 2011 and they decided to marry before Arthur died.  They travelled to Maryland for the ceremony, which was difficult for Arthur because of his medical condition.  Three months later, Arthur died.  Ohio law does not allow James to be listed as the surviving spouse on Arthur’s death certificate and, as Justice Kennedy says it, “By statute, they must remain strangers even in death, a state-imposed separation that [James] ‘deems hurtful for the rest of time'”

April and Jayne are co-plaintiffs from Michigan.  They are both neonatal nurses and, between them, they have adopted three children.  But, the state of Michigan only allows adoptions by married couples and single people.  In Michigan, same-sex couples are not allowed to marry, so each child can be adopted by only one of them as his or her legal parent.  Justice Kennedy explains that this situation could cause a problem in emergency situations where a school or hospital may treat the child as having only one parent who could make medical decisions.  Further, if one of the women were to die, the other would have no legal rights over the children that she was not permitted to adopt.

Finally, Ijpe DeKoe and his partner Thomas Kostra are from Tennessee.  Ijpe is in the Army Reserve and was deployed to Afghanistan in 2011.  They were married in New York before his deployment.  When he returned, they settled in Tennessee where Ijpe works for the Army Reserve.  Tennessee does not recognize the couple’s New York marriage and, as a result, Justice Kennedy says  “[T]heir lawful marriage is stipped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines.  DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.”

Justice Kennedy then discusses the deep changes that have occurred in our understanding of marriage over the past centuries,  Marriages were at one time arranged relationships.  They became relationships where the couple was treated by the state as one male-dominated entity. Over time, we have seen that women are an equal partner in marriage.  Finally, we have seen that marriage is based on romantic love.  He says that these are new insights that have resulted in a deep transformation in the structure of marriage.

He closes the introduction with a brief description of society’s changing attitudes toward homosexualty.  He explains that society now understands that sexual orientation is an immutable characteristic and a normal expression of human sexuality.  The legal standing of homosexuals has similarly changed over this time.  At one time, intimate relations between two people of the same sex was a criminal offense.  The laws have changed and homosexuality has entered the main stream.  Those are my words, not his, but I think they reflect the point that he is trying to make.

It is against this changing understanding of marriage and of sexual orientation that the legal question about same-sex marriage has come up.  Some State legislatures (or state Supreme Courts interpreting the state’s constitution) have legalized same-sex marriage.  Other states have not.  Numerous cases about same-sex marriage have reached the Unites States Courts of Appeals in recent years and the appeals courts have reached different decisions about the legality of same-sex marriage.  This “split in the circuits” as it is called, gives the U.S. Supreme Court the authority to hear these cases and issue a decision that will unify the courts.  Also, he notes that the states are still divided on the subject of same-sex marriage even though they have had years to try and work it out.

It is against this background that Justice Kennedy begins his legal analysis and I will begin covering his legal analysis in the next post.  Thank you for reading along.  Please leave me comments and questions.




Obergefell – The Definition of Marriage

Before I talk about the different opinions entered in Obergefell, there are a couple more introductory points I need to make.  (If you didn’t read my first post in this series giving an overview of the issues covered in the decision, you can read it here.)

The first point we need to understand is that, in the Obergefell decision, “marriage” means “civil marriage.”  A civil marriage is the the legal union of two people (before Obergefell, in most states, the people were of opposite sex).  Civil marriage carries with it a bundle of legal rights and responsibilities that are granted by the States.  The Petitioners argued that it was unconstitutional for States to prevent same-sex couples from entering civil marriage and, as a result, denying same-sex couples the same bundle of rights and responsibilities that the States give to opposite-sex couples.

“Marriage” may also be defined as religious marriage.  For Christians (I won’t get into comparative religions here), marriage is spiritual union in which a man and woman become one.  Someone does not need to be licensed by the State to perform a religious marriage and the couple does not need a license from the State to enter into a religious marriage.    I don’t know anyone who has done it, but a couple could choose to be married in a purely religious ceremony.  They would be no less married than anyone else in the Christian sense.  But, the couple also would receive none of the legal rights and privileges given to couples who have a State-recognized civil marriage.  The Supreme Court decision does not require churches to perform religious ceremonies for same-sex couples.

This is where it becomes confusing for people.  Here in America, most people don’t think about marriage as a legal relationship and a spiritual relationship.  At least for Christians, it is a spiritual relationship first and the legal rights and responsibilities that come with it are extras.  It is easy for Christians to think that because the legal union and spiritual union are usually accomplished at the same time.  The person officiating the wedding doesn’t say, “OK, that completes the spiritual union, now we will move on to the legal union.”  The couple is joined spiritually in the religious ceremony.  The couple is joined legally when the person officiating the wedding signs the marriage license that has been issued by the State.   The signed marriage license provides evidence of their legal relationship.

What I Think about the Decision

I was not going to tell you what I thought about the decision until I had summarized the majority and dissenting opinions.  But, if you are taking the time to read these posts, you deserve to know my potential biases from the beginning.  I will try to be fair-minded, but everyone writes from a point of view.

I agree with the dissenters that the case was not ready to decide and the question should have been sent back to the States.  If you know me, you know that I did not reach this conclusion because I hate people who are gay or lesbian.  If you don’t know me, it won’t do any good for me to tell you that.  No one who wants to be credible on this issue is going to say that they oppose Obergefell because they don’t like the people who will benefit from it.

The fact that the Supreme Court split 5 to 4 on this case tells me that of 9 of the best legal minds in the country can’t decide if the Petitioners’ have constitutional rights that were violated by the States.  The majority says they do and the dissenters say they don’t.   For a decision of this magnitude, I would like the Supreme Court to be 100% certain that they have rendered the right decision.  In Obergefell, the Court is effectively 55% (5/9) certain.   55% “certainty” is barely better than a coin toss.  Is that a high standard?  Brown vs Board of Education, the decision that ended the despicable practice of “separate but equal” was a unanimous decision. The Supreme Court was 100% certain they had reached the right decision.  Likewise, Loving vs Virginia, which is cited in Obergefell, was a unanimous decision ending the State white supremacy laws that made it a crime for a white person to marry a person of color or for someone to conduct a wedding between a white person and a person of color.  Regardless of whether people agreed with these decisions (and many did not), they knew that the Supreme Court was completely certain it had reached the right answer.

To be fair, the Supreme Court is not required to render a unanimous decision just because someone thinks the case is really important.  The Supreme Court needs only a simple majority to support a decision.  But, I hope you see my point.

Next, I plan to go through the majority and dissenting opinions.  I won’t outline the decision for you.  Instead, I will go over the major themes or arguments used in the majority and dissenting opinions.  As I do it, I will point out questions and observations along the way.  The next post will talk about the introduction to Justice Kennedy’s majority opinion.

If you would like to read the Obergefell decision, or follow along with the coming posts, you can follow this link.

Do you have questions or want to raise a point?  Please leave a comments.


Obergefell Series Introduction

Originally published in July 2015

By now you have heard that the US Supreme Court has ruled that states must issue marriage licenses to same-sex couples and states must recognize the marriages of same-sex couples that were performed in other states.  You may read a lot of information from people who are for same-sex marriage or against same-sex marriage.  Some of the conversation on both sides is inflammatory.  What I would like to do here is give a simple summary of the decision.  I hope it will help you see through the smoke to what, I believe, are the core issues.  If you want to wade through the 100-page decision, I link to it at the end of this post.  If you are interested in the issue, I recommend reading it.

First, some basic information.  The case was a consolidation of four cases from the United States Court of Appeals for the Sixth Circuit, which sits in Cincinnati, Ohio and handles appeals from the states of Ohio, Michigan, Kentucky, and Tennessee.  The cases were from all four states.  In addition to the briefs filed by the Petitioners, the Court received 139 Amicus (or Friend of the Court) briefs arguing the two questions that the Court agreed to address in the appeal.

As additional background for those of you from outside the US as well as those who haven’t taken a civics class for a long time, the way our government is set up, the State is responsible for the health and welfare of its citizens.  That responsibility includes deciding who should be granted the legal rights that accompany civil marriage and how the State’s children will be educated, to name two examples.  Therefore, it is a big deal for the Supreme Court to step in and act as a “super legislature” that tells all the people of every state what the law requires them to do.  The Supreme Court has done that before in cases that you will recognize when I talk about them in later posts and, when you find out what the cases are, you will likely agree that the Court’s action in those cases was appropriate.

What were the questions that the Court agreed to address?  The first is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex.  The second is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a state which does not grant that right.  (I am going to leave out the citations to the decision.  If you really want to know where information came from, leave a comment.)  The Court split five to four on the two questions.

The Justices supporting the Majority opinion were: Kennedy (who wrote the opinion), Ginsburg, Breyer, Sotomayor and Kagan.  The dissenting Justices were: Roberts (Chief Justice), Scalia, Thomas, and Alito.  In addition to the Majority opinion, there were four dissents that were joined by various combinations of the dissenters.  No one dissent was joined by all the dissenting Justices.

The Court held that the 14th Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.  In the Majority opinion, Justice Kennedy relied on the Due Process and Equal Protection clauses of the 14th Amendment plus Supreme Court case law.

The dissenting opinions believed that the Due Process and Equal Protection clauses did not apply in these cases and that the question of licensing same-sex marriage should be left to the States’ legislative processes.  As Justice Roberts said, “[s]tealing 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.”  The other dissenting opinions focused on different aspects of the argument, but ended at the same place; the question should be left to the States to sort out through the democratic process.

That is a very short summary of a very long decision.

One final takeaway, and this is where the controversy lies.  The Justices in the majority do not say in their opinion that they support the idea of same-sex marriage and neither do the Justices who dissented say they are against it.  The decision is based on the Constitution and case law.  Those who disagree argue that the majority opinion or the dissenting opinions were written out of a desire to see a certain outcome and not in accordance with the Constitution and the law.  A practice sometimes referred to as “judicial activism.”  We will likely not know the motives of any of the writers.  But, regardless of the side you line up on, I think it is important to understand the reasoning of the other side.  Not because of what it says about same-sex marriage, but because of what it says about how and when the Supreme Court will step into matters that are otherwise constitutionally the responsibility of the States.

In future posts, I will talk about the opinions in more detail along with some of the implications I see for the church in particular and everyone in general.

Here is the link to Obergefell.  The majority opinion and the dissents total about 100 pages.  I am an attorney, and parts of the decision took some thought to follow the arguments.  You may also find it challenging.  But, if you really want to get past the headlines, it is a good idea to read the full opinion.

What do you think about the decision and what questions do you have?  Please leave a comment.