Praise to Thee Ma’at, Lady of Law and Justice,
You who is the fertile flame of the inner sun.
Restore our strength, we ask, that we may know You,
And in knowing You, we may do that which should be done.
Grant that all may be made right,
Grant that all may be made right.
Praise be to Ma’at and to all the Gods and Goddesses of Justice and all the Gods and Goddesses of Love! Marriage equality is now the law of the land in the United States.
The Ruling
Writing for the 5-4 Supreme Court majority, Justice Anthony Kennedy said
The right to marry is a fundamental right inherent in the liberty of the person, and 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 that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.
The 28 pages of the ruling build a legal, logical, and moral case to support this conclusion. To those who argue the court should leave this to the political process, Justice Kennedy says
Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Or, as many of us have said before, you don’t get to vote on basic rights. Nobody voted on my marriage and I don’t expect to get to vote on anyone else’s.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
The Dissents
In his dissent, Chief Justice Roberts went out of his way to express sympathy to same sex couples. Unlike Justices Scalia, Thomas, and Alito, Justice Roberts understands he’s on the wrong side of history. But rather than doing the right thing, he fell back on the “redefining marriage” argument. He insists marriage is defined as one man and one woman and changing that requires legislation. He also argues that marriage was designed to promote reproduction and support children. Yet a simple observation of gay couples shows this definition is at best inaccurate, and a simple reading of history shows there have always been multiple reasons for marriage.
Justice Scalia said “The law can recognize as marriage whatever sexual attachments and living arrangements it wishes” – thus something as personal and fundamental as marriage is no different from tax policy.
Justice Thomas argued that human dignity is innate – and he’s right. But then he inexplicably argued “human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.”
In Justice Thomas’ bizarre world, “dignity” is a meaningless phrase that makes no demands on anyone.
Justice Alito said “The question in 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 of each State.”
No, Justice Alito, it does. As the court’s majority correctly reasoned, the 14th Amendment makes that clear. “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
A Philosophically Divided Court
If the Supreme Court was a church it would have schismed long ago over a key philosophical issue: is the Constitution dead or is it alive? More precisely, are the rights of citizens limited to those generally accepted at the time the Constitution and its amendments were ratified, with other rights being subject to the whims of a majority vote? Or do our rights flow from our inherent dignity and worth as living, breathing, human beings; enumerated generally in the Constitution and applied specifically as the need arises?
The conservative wing of the court takes the first position and argues that any change in the status quo requires explicit legislation. The liberal wing takes the second position and argues that while the equal protection clause of the 14th Amendment may have been written to guarantee equal rights to freed slaves, its intent is clearly broader than that and applies to LGBT couples who want – and are entitled to – the same rights as straight couples.
This philosophical debate is both divisive and disruptive, but the Supreme Court cannot schism. It can only be filled with Justices who support one side or the other. If you think elections don’t matter, or that Obama is no better than Bush (and in many ways he isn’t), think about how this case would have been decided if instead of Sonia Sotomayor and Elena Kagan, President McCain or President Romney had appointed two more Scalia clones.
There Are No States Rights
While I have enjoyed watching marriage equality spread across the nation state by state, I find the whole process offensive. The idea that Americans have less rights in some states than in others is fundamentally flawed. We are one nation, not fifty. It took a war to decide that issue, and a massive movement a hundred years later to confirm it.
Let states decide state issues. California obviously needs a different water policy than Tennessee. If the residents of Texas want lower taxes and lower services than the residents of New York, that’s their prerogative (I think it’s a bad choice, but it’s still a valid choice). But the idea that a couple can be legally married in one state but not another is logically absurd and practically unworkable.
The Real Issue
The real debate hasn’t been about whether same sex marriages are good or bad. LGBT couples have been forming families (here and elsewhere in the world) for long enough it’s clear their marriages are no worse and no better than those of straight couples. Couples who love and respect each other and work together for their common good will succeed – those who don’t, won’t. As important as marriage equality is to a free and fair society, and despite the loud and often irrational rhetoric from the anti-equality side, this issue is ultimately not about marriage.
The real issue is the normalization of homosexuality. And in the West, that battle has been decided, even if some die-hards won’t accept defeat. As gay people have come out of the closet and straight people have gotten to know them, their observations have led to a very simple conclusion: it’s no big deal.
There is simply no valid reason to deny equal rights to LGBT couples.
The Slippery Slope is a Logical Fallacy
This ruling does not address polyamorous marriages – they remain officially unrecognized. Perhaps they should also be recognized and perhaps they shouldn’t – this is a separate issue from same sex marriage. Right now I’m too busy celebrating this bit of justice to take up another debate.
To Conservative Religious Objectors
If you object to this ruling, I have good news for you: it doesn’t apply to you. The ruling does not invalidate your marriage. If you’re not married, you’re still free to marry someone of a different gender, or not marry at all – it’s still your choice. No one will force you to participate in a same sex wedding or even attend one. Your church can still decide who can get married in it and who can’t.
If you work in the wedding industry (that there is a wedding industry is troublesome, but that’s another rant for another time), I have more good news: you’re about to get all the business you can handle.
If you don’t want to serve same sex couples, this ruling is irrelevant – federal law already bans discrimination in public accommodations. If you do business with the public, you do business with ALL the public – you don’t get to pick and choose who you’ll serve and who you won’t. We settled that issue during the Civil Rights era.
The Arguments Are Over
I doubt the hard-core opponents of marriage equality will accept defeat. They’ll begin a campaign for a Constitutional amendment to undo this ruling. They have that legal right even if they have no moral right to do so. They will fail. The country has moved on, and today the Supreme Court recognized that happy fact.
I suspect some small-minded local bureaucrats and politicians will attempt to delay the implementation of this ruling, or simply defy it. They will be as wrong as George Wallace standing in the schoolhouse door, and they will be no more successful.
Celebrate!
Today the long arc of the moral universe bent a little more closely towards justice. I am thrilled that my gay and lesbian friends can now have their marriages officially recognized even here in Texas. I look forward to attending more weddings and perhaps officiating a few. This is a great day for justice and a great day for love!
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