Gay Marriage-Supreme Court Decision
In 2016, the US Supreme Court issued a 5–4 opinion written by Andrew Kennedy concluding that the Constitution’s 14th amendment under its Due Process and Equal Protection clauses includes a right to gay marriage. During the arguments, justices on both sides questioned: 1)since the definition of marriage has always been a province of state legislators, why should the US Supreme Court intervene?, and 2)since marriage has been defined as being limited to opposite sex partners in all societies throughout history, why change it now? The court had two additional concerns 1) the court wished to limit its decisions on the narrowest possible facts to prevent unexpected consequences, and 2) the court was aware that in its Roe v Wade decision on abortion, it had acted well before the public was ready to accept this major change.
The majority opinion is based on what the justices felt was moral. It is very moving, but short on Constitutional logic. The legal precedents included Loving v Virginia, stating a right to interracial marriage, and Lawrence v Texas, allowing homosexual acts between consenting adults in private. It noted that marriage is a foundation of every society, and promotes stability in a relationship, as well as facilitating child-rearing. I felt good reading the opinion, since I am a strong supporter of gay marriage.
The dissenting opinions mentioned several flaws in the majorities’ approach. First, it allows 5 non-elected justices to supplant the will of the people as done through their state legislators. Next, it distorts the clear meaning of the Due Process and Equal Protection Clauses of the 14th amendment, as understood at the time of its enactment. Chief Justice Roberts noted that opposite-sex marriage is a foundation of our society, and is done to facilitate procreation, stable adult relationships, and child rearing. He failed to address the fact that gay couples are now involved in all three. He also noted that the states needed to have a rational for forbidding gay marriage or limiting any other right or privilege. I got no indication that any of the dissenting justices were opposed to gay marriage, but they felt it should be left to the state legislators.
I would have suggested a third approach. The decision should allow gay marriage if and until a state provides some rational under today’s social environment for its limit on marriage. If the rational is to limit marriage only to persons who are willing and able to procreate, it may be a permissible rational. See how many states would take that approach, to prevent marriages of seniors. Ironically, fertile gay women could have artificial insemination and be married. Touche!
