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.