Thoughts on Obergefell v. Hodges, Part 1

Ok, let’s get the important observation out of the way: one of the most important SCOTUS rulings in our generation has a truly, awful name.

The Majority Opinion

The majority opinion is mostly a straightforward application of liberal, evolving-constitution theory.  The 14th amendment establishes marriage as a fundamental right.  The authors at the time didn’t specifically apply this to gay couples because the concept of gay marriage did not exist at that time.  But the idea does exist now.  In fact, we have many gay couples who want to be married.  A straightforward application of the ideas of the 14th say we should extend them that right.

To establish precedent, the opinion focuses on Loving v. Virginia, which  banned laws forbidding interracial marriages, and the elimination of coverture, which was the practice where a married woman’s rights were subsumed by her husband.   These, too, were fundamental changes to marriage.  In addition, the majority references Laurence v. Texas, which banned laws that made gay sex illegal. (Note that Scalia vigorously dissented in Laurence, saying the the logic contained in that decision would lead to gay marriage.  Prescient, he was.)

Simple enough:  Marriage is fundamental, to whom it applies varies with the times, the time for gay people is now, we’ve done this sort of thing before.  It is so ordered.

The majority doesn’t stop there.  They go into the text of the 14th and find synergies between the Due Process Clause and the Equal Protection Clause.  I did not follow this very well and thought this was due to it being over my head, not being a lawyer and all.  However, Scalia eviscerates this so thoroughly in his dissent, I don’t think it’s just me.

Logic the majority does not mention is that from  United States v. Windsor.  In this case, just two years ago, exactly these same five jurists, ruled as unconstitutional DOMA (Defense of Marriage Act), because the definition of marriage should be left to the states.  They couldn’t stop talking about how important it was for the states to have this power, until now.  That is just so 2013.  So, the conservative critique of the courts actions on this topic is not all sour grapes and homophobia.  However, it seems clear to me the right was always in the constitution.  The majority was trying to get there without evoking a Roe v. Wade backlash.

For what the majority opinion lacks in coherence, it makes up in pathos.  The ruling starts with describing three petitioners: deeply committed, caring people whose lives are marginalized and denigrated by the states’ condemnation of their union.  They detail real, and hypothesize other, heart-rending tragedies for these people, their loved ones, and their children because of their inability to sanctify their unions in marriage.

They then move on to marriage itself, lauding its significance and its meaning to our culture and ourselves.  They describe the joy it brings, the better it makes us, and the vital role it plays in all our lives.  After all that, you think you’ve made it through without falling apart, and then they hit you with this:

Marriage responds to the universal fear that a lonely person might call out only to find no one there.

I completely lose it at this point.  I’m now bawling at my computer screen, “Oh, God!  Please don’t let the poor, gay people die alone!”  After recovering, and getting through the rest of the legal discussion, the opinion ends with more poetry:

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.

That’s powerful stuff.  To be perfectly honest, the majority is feeling their place in history and playing to the audience a little.  I can probably live with that.

I think the four liberal judges would have signed off on a majority opinion saying

  • The 14th amendment guarantees marriage rights to everyone regardless of sexual orientation. Because, duh.

The inclusion of Kennedy necessitated an attempt at some textual analysis and excessive verbiage. Thus, instead of a purely sober and reasoned defense of gay marriage, we got some meandering logic and some flowery exhortations of feelings and poetry.

Not that there is anything wrong with that.

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