The Supreme Court’s much-anticipated decision in Obergefell v. Hodges, the same-sex marriage case, is pretty much what most people expected: a 5-4 decision, with Justice Kennedy — the swing voter between the Court’s four liberals and four conservatives — writing a majority opinion that strikes down state prohibitions. Justice Kennedy’s reasoning is pretty much what was expected as well, arguing that the right to marry the person of one’s choice is a fundamental liberty, and buttressing this right with the requirement that states treat their citizens even-handedly under the Constitution’s Equal Protection Clause. Perhaps his heavy reliance on liberty is a bit of a surprise; if so, it is a welcome one.
The four dissenters, who wrote four separate opinions, offer a real surprise however. It’s not their position, their basic arguments, or even the intellectual weakness of those arguments (there is, after all, no principled basis for opposing government recognition of same-sex marriage). It’s the incoherence, insensitivity, and generally hysterical quality of those opinions that provide the drama in this important but widely-predicted decision.
Chief Justice Roberts’ dissent, which all of the other conservatives joined, is the most temperate, but even that one is filled with howls and howlers. He begins with the argument that marriage is traditionally between a man and a woman; it is, he writes, “a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” If his point is that marriage has been around for a long time, it seems odd to use two presently existing ethnic groups, the Bushmen and the Han Chinese, as examples. Maybe he was getting the Han Chinese confused with the Han Dynasty, which collapsed a few centuries before the fall of Rome. But why are the Bushmen (more properly known as the San) being used as an example of ancient history: Because they live a simpler lifestyle than we do? Because they have darker skins? The Carthaginians and the Aztecs are indeed past civilizations, however, and both, despite many great achievements, were notorious for their extensive reliance on slavery and human sacrifice. (One of the Carthaginian achievements was to bequeath to us the word “gorilla,” which referred to what were probably the flayed skins of sub-Saharan African people that hung in their central square). Justice Roberts continues by asking “Just who do we think we are?” to contradict the practices of these ancient civilizations. The answer, John, is that we’re the people who established a nation based on human rights and human liberty. We’re the people who overturned the traditions that perpetuated inequality and injustice for all those previous millennia.
Justice Roberts continues that traditional marriage is designed for the purpose of procreation, “which occurs through sexual relations between a man and a woman … For the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.” No John, procreation occurs through the fertilization of a human egg by a human sperm, something that modern medicine enables us to perform outside a man or a woman. Many children, for straight as well as lesbian individuals and couples, are conceived that way these days. If the biology is a bit out of date here, the morality is both out of date and confused. Is the Chief Justice really saying that while homosexual sex is just fine, heterosexual sex outside of marriage by people of child-bearing age is a moral wrong? And is that a sufficiently coherent moral basis to justify state law prohibitions against same-sex marriage? The effort to connect the ban on same-sex marriage to procreation and child-rearing inevitably founders on a myriad of obvious contradictions (polygamy should be encouraged for its procreative efficiency, old or infertile people shouldn’t be allowed to marry). But the basic one, in the context of this case, is that Roberts touts as the exclusive province of heterosexual marriage exactly what the petitioners are asking for: the opportunity to be “committed to a lasting bond,” often for the sake of raising their biological or adopted children.
Next, Justice Roberts turns to the majority’s argument that traditional marriage is not worth upholding, since it was typically arranged by the parents and included coverture, the legal doctrine holding that the wife’s legal identity was subsumed by her husband’s. But those features aren’t central to the concept of marriage, the Chief Justice argues in a disparaging tone: ‘If you had asked a person on the street how marriage was defined, no one would have ever said, ‘Marriage is the union of a man and a woman, where the woman is subject to coverture’.” Yes they would have, John. They might not have known the legal term, but those people on the street would all have understood marriage to be about the husband’s dominance over his wife. Men who failed to carry out this role were scorned, and sometimes ostracized; women who objected to it were seen as monstrosities. As a seventeenth century poet wrote: “I know not which live more unnatural lives, Obedient husbands, or commanding wives.” The subordination of the woman was central to the traditional definition of marriage, just like the man and woman requirement.
Having gotten marriage wrong, Justice Roberts proceeds to get the Supreme Court’s role wrong as well. The real question in the case, he says, is whether the decision about same-sex marriage “should rest with the people acting through their representatives or with five lawyers.” But the decision can’t really be described as resting with “five lawyers” John. It’s a decision of the Supreme Court of the United States, which, like most of our institutions, reaches its decisions by a majority vote of its members. That Court’s role is to protect human rights from the “people acting through their representatives.” Ever since our nation was founded, the dangers that inhere in the “tyranny of the majority” have been widely recognized. The universally-acknowledged purpose of the Court you lead, John, is to counteract that basic flaw in an otherwise desirable system of government. When a minority group is unpopular and widely scorned, when it finds the majority ranged in unity against it, when that majority acts to deny the minority the basic rights to which all people are entitled, and which the members of the majority enjoy, it is precisely the Court’s role to invalidate the majority’s actions and ensure the rights of all Americans.
Drawing on an unfortunate theme in modern political theory, the deliberative justification for democracy, Justice Roberts glorifies the political debate about gay marriage that is currently being carried on in the states. That debate reflects the true spirit and operation of our democratic system, he says; the Supreme Court, by declaring laws against same-sex marriage unconstitutional, “puts a stop to all that” in his view. This is the theme that the other three dissents trumpet at extraordinary length, and in such high-pitched, hysterical terms, that even the Chief Justice cannot bring himself to join them (although two of them join him). The picture of a benevolent, edifying debate about public policy is weirdly unrealistic, and patently offensive, when applied to a social movement organized by one of the most consistently disadvantaged and disparaged groups in our society to fight for equal rights and decent treatment. The current controversy is not a rational debate about public policy. It’s an effort by committed people, both gay and straight, to end centuries of discrimination, a word that none of the dissenters ever use in over 60 pages of dissent, not even once. It represents a deeply moral initiative to recognize that in our modern world, people should not be denied the opportunity to pursue their goals and receive equal treatment because of their gender or sexual orientation.
Featured Image Credit: “Rainbow flag: banner, harvey milk plaza, castro, san francisco” by torbakhopper. CC BY 2.0, via Flickr.