10 thoughts on Obergefell v. Hodges

10 thoughts on Obergefell v. Hodges June 26, 2015

In no particular order, some thoughts on the gay marriage decision today.  (What, are you living under a rock?  By a 5 – 4 vote, the Supreme Court declared that, across the United States, same sex couples have the same right to marry as opposite sex couples.  But I admit that I haven’t read the decision — both due to a lack of time and because, to be honest, as with the Obamacare decision yesterday, I don’t want to set myself up for more frustration.)

1.  Yes, it’s scary that five individuals had the power to enact such a significant change, and codify a new social order.  What else will a future Supreme Court determine they have the authority to decide?

2.  The legal “reasoning” or lack thereof (see Ann Althouse today for some excerpts) certainly makes it highly unlikely that the justices reviewed applicable law to arrive at their decision, and extremely likely that they knew the decision they wanted, and worked backward from there to identifying precedent and justification.  Again, very unsettling.

“Marriage responds to the universal fear that a lonely person might call out only to find no one there.” Is “unlike any other” relationship between 2 persons. It’s about the assurance that there will always be “someone to care” for you.

That’s a mix of quote and Althouse paraphrase, and, in the year 2015, with no-fault divorce, hardly a guarantee that marriage provides; in fact (yes, I know this is anecdotal), the first time I read of a wedding vow that promised to stay together “as long as love shall live” it was in a book describing (positively, I might add) gay weddings and commitment ceremonies.

3.  On the other hand, this isn’t unprecedented.  Roe v. Wade (and Doe v. Bolton) similarly invented a “right” — and one might even say that the finding of a right to abortion in the constitution was even more unprecedented, given the fact that the court even found a specific trimester structure to that “constitutional right” as well.  So no one should claim to be shocked. (Oh, and remember back when we were told that it was preposterous and thoroughly unnecessary to contemplate a constitutional amendment against same-sex marriage, or protecting against the risk of such a Supreme Court decision as today’s?)

4.  The use of terminology around “identity” and “autonomy” means that, well, really, it’s hard to see any legal grounds for opposition to polygamy.  Of course, it’s pretty clear that the court listens pretty heavily to the prevailing winds, and there is no groundswell of support for polygamy yet, so there’s that.  But just as the court has discarded arguments that, in intangible ways, future children will be harmed, so too arguments that women will be harmed because past connections between polygamous societies and ill treatment of women may be equally seen as too intangible to legitimately put a brake on multi-partner marriage.

5.  Oh, and, yes, the court found concerns about children to be irrelevant.  Now, it’s not clear to me whether this decision automatically means that, nationwide, lesbian spouses to women who give birth will automatically be entered as Parent B on the birth certificate, nor whether the same will be true for men who adopt, or even whether gay men will be deemed to have the right to acquire a child by surrogacy (after all, if marriage is a fundamental right, then surely parenthood is), but I assume that’ll be inevitable.

6.  But, ironically, this court decision was built on the fact that, as far as the Court, and the government is concerned, children have nothing to do with marriage, will surely solidify public opinion on the matter.  But so far as I can tell, the impact on future fatherless (or motherless) children is too abstract a concern to make headway against the concrete harm of a loving couple denied marriage.

7.  And speaking of concrete harms:  we have moved far away from the notion of marriage as the norm for coupled and child-rearing life, and this decision likewise solidifies that:  marriage is a legal status entered into for the dual reasons of government benefits and social recognition. You’d think that a consequence would be to rethink what the benefits are, anyway — after all, if the decision today was about remedying unfairness experienced by married couples, what about the unfairness of singledom?  But that’s not likely, given the inertia in government.

8.  Oh, and by the way, the benefits of marriage that Kennedy found gay couples to have been unfairly deprived of — that’s not due to marriage as a government-recognized status so much as a societal recognition, and the next push is inevitably what we’re seeing already, the punishing of dissent.  Pew predicted that everyone would be reasonable and accommodating, but there are too many people using the language of “bigotry” already for this to seem likely; far more probable, so far as I can see, is for conscience protections to be extremely narrowly proscribed, due in particular to the power of individuals to file discrimination lawsuits.

9.  We are in the middle of a huge social experiment.  The move to secularism, the rejection of mother/father pairings as best, or even better, for children, assisted suicide, and you can add to the list — we don’t have any idea what the end destination is.  We use trite statements like “everyone believes in the Golden Rule” to say that people will fundamentally always be good and moral, but a lot of what we see as moral is fairly abstract and is being discarded already.

10.  Blog traffic is way, way down today.  I don’t know what to make of that — maybe everyone’s headed out of town, in less rainy parts of the country.  Maybe I have fewer “regular readers” and more post-specific readers than I thought.  Or maybe large numbers of you also feel extra discouraged, especially with the double-whammy after yesterday’s decision, and with all the celebration on twitter, facebook, etc., among your socially-liberal friends.  (Or, if you’re one of my socially-liberal readers, heck, maybe you’re too busy celebrating.)

 


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