With Liberty and Justice For All

With Liberty and Justice For All June 27, 2015

LoveWins

June 26, 2015 will be remembered as the day love won out in the United States of America. In Obergefell v. Hodges, the Supreme Court made marriage equality the law of the land, striking down all remaining bans on same-sex marriage.

While waiting for the decision, I admit I had some doubts. I never seriously doubted that the Supreme Court would rule for equality; they signaled their intent months ago, when they refused to halt pro-marriage decisions by lower courts, and it was obvious that they weren’t going to create chaos all over the country by reversing course. However, I thought it was possible they might hand down a ruling that offered some face-saving escape to the holdouts – say, that they’d have to respect marriages performed elsewhere, but wouldn’t have to solemnize those marriages themselves.

But no. The court’s majority went all the way, requiring full equality in all fifty states, with no loopholes, no hesitation and no evasions. Anthony Kennedy, unsurprisingly the key fifth vote, was swinging for the fences:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Having read the decision, I’m surprised that the Full Faith and Credit clause was never mentioned. In my admittedly non-expert opinion, that seems like a stronger basis for marriage equality than even the Fourteenth Amendment. But that’s a minor quibble when put up against the biggest civil-rights victory of this generation.

Kennedy’s decision hit all the right notes. He pointed out that the definition of marriage has been evolving for a long time, often with nudges from the courts (to end coverture and other sexist notions, or to nullify interracial marriage bans); that just because a belief is of great antiquity doesn’t make it morally right (“The nature of injustice is that we may not always see it in our own times”); that procreation has never been a requirement for marriage, and conversely, that excluding gay and lesbian couples from marriage doesn’t prevent them from having children who deserve legal protection.

All the conservative justices wrote angry dissenting opinions. John Roberts compared marriage equality to the infamous pro-slavery Dred Scott decision, writing that the flaw in both rulings was that the court was too eager to invoke the doctrine of substantive due process:

The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford… There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so.

That’s funny. I thought the flaw in Dred Scott was that it treated human beings as property, but maybe that’s just me.

But even more hilariously appalling is Clarence Thomas, in an opinion that deserves a prominent place in the halls of hypocrisy. Thomas argues that the Constitution’s protection of “liberty” extends only to the literal, physical liberty to move around and act without restraint, not to a more abstract notion of recognition by the government. According to him, same-sex couples already had this kind of liberty, so there should’ve been nothing for the court to do:

Nor… can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions.

In a convenient bout of judicial amnesia, Thomas forgets that many states did criminalize same-sex intimacy, and LGBT people did ask the Supreme Court to strike down those laws – and though the court did indeed invalidate sodomy laws, Thomas voted to uphold them. This is hardly ancient history; it took place in 2003. Yet Clarence Thomas now pretends that none of this ever happened. He implies that he would have ruled against laws that restrict the physical liberty of gay and lesbian people, even though he did the opposite when that decision was actually before him.

Last but not least, there’s the human bile fountain Antonin Scalia. He grumbled about why anyone would even want to get married, in a passage that has all the witty observational humor of The Lockhorns:

Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.

In an especially gasp-inducing paragraph, he argued that it shouldn’t matter what the law says, because nothing the government does can add to or detract from human dignity, not even slavery or internment camps. [Correction: As pointed out in comments, this passage is from Clarence Thomas’ dissent, not Scalia’s. Coming from a black justice, this possibly makes it even more appalling.]

The corollary of that principle is that 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. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.

But all this is irrelevant now. Professional gay-bashers had the expected meltdowns (my personal favorite was the guy who prayed for a plague of cicadas). A coalition of evangelical leaders signed a statement declaring, “We will not capitulate on marriage” – although they didn’t explain what, if anything, they actually plan to do. One column optimistically proposed that Christians may be better able to convert gay people, now that they’re no longer “a threat to their political agenda” (good luck with that one, guys).

Meanwhile, Republican candidates’ reactions ran the gamut, some responding with bitter denunciation, others with resigned acceptance – though, very notably, none with support. I can’t wait to see the eventual nominee get raked over the coals for this, no matter which way he goes on it. Never has the gap between Republican primary voters and general election voters been so apparent.

It’s hard to believe that it was just six years ago that equal marriage rights seemed like a lonely, distant prospect. Change has come more swiftly and completely than I ever thought possible. (Just try to read this collection of newspaper front pages from all across the nation with dry eyes.) This doesn’t mean that the job is done: anti-gay discrimination is still legal in many states, despite marriage now being permitted; and of course much residual prejudice remains to be extinguished. But we’re one giant step closer to equality, and the idea that arbitrary religious morality should dictate how everyone lives has been dealt a huge blow.

Image: Celebrating the Supreme Court’s ruling in San Francisco, 26 June 2015. Public domain, via Bhautik Joshi.

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