I did not find the dissents compelling. True, from the strict constructionist point of view, the case is straightforward:
- Gay marriage is not explicitly enumerated in the constitution,
- The authors of the 14th amendment assumed marriage meant one woman-one man.
- The states can do what they want.
- I respectfully dissent.
Even if I disagree with strict constructivism, I could respect this point of view given two things. First, that they would not whine endlessly about it, and, oh my goodness, they do. Second, that they would at least admit there exist other legitimate ways of reading the constitution, and, oh my goodness, they do not.
Robert’s Dissent and the “traditional definition of marriage” argument
Robert’s dissent is distinguished by the degree to which “I really support gay marriage personally. I really, really, really, do.” oozes between all the lines. He ends his dissent congratulating gay people on their new freedoms.
Roberts details the obvious: that marriage was a one-woman-one-man thing for all of history. But from this, he can only draw one conclusion: that gay marriage is not constitutional. He cannot even admit the possibility of another conclusion: that the bias for opposite genders has blinded judges from giving constitutional protection, so far.
Some history: In 1975 in Colorado two men applied for a marriage license. A county clerk issued one since he couldn’t find anything in the state law that prevented it. Only one man was an American citizen, so they applied for a spousal visa. Below I reproduce, in its entirety, the official response (on official letterhead) from the United States Citizenship And Immigration Services:
“You have failed to establish that a bona fide marital relationship can exist between two faggots.”
The couple sued, but the federal circuit court ruled against them. They had to leave the country to stay together.
This is the flaw in the “traditional definition” argument. The fourteenth amendment does not mention marriage. It has been interpreted to say marriage is a fundamental right. Up until now, the court thought this only applied to opposite gendered marriages. Why? It is not defined that way in the constitution. Here is the entire text of the 14th amendment (that applies):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The “traditional definition” argument says that everyone at the time of this amendment only understood one type of marriage. True, but that is not a constitutional definition of marriage, that is an interpretation of marriage. When the above text was first determined to provide a fundamental right to marriage, it was interpreted to mean opposite genders, not because of anything the text said, but because of the undeniable and universal hatred, fear, and bigotry towards gay people.
Knowing what we know now — that gay people are not evil abominations contaminated by Satan, but biologically inclined to be attracted to others of the same gender — there is nothing in the above text to imply marriage is only for people of the opposite sex. The dissenters go ballistic about the denigration of the constitution by creating new rights, but this is just not true. The right was always there; we didn’t see it because of our bigotry. The constitution did not evolve, we did.
Or, at least, the judges evolved. The circuit court judge who ruled against that gay couple from Colorado in the 70s was Anthony Kennedy.