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.