Obergefell v. Hodges: A Primer in Same-sex Legislation

(1) Whereas, the right to personal choice – be it to murder an unborn child or to cohabit with another of the same-sex – is inherent in the concept of individual autonomy;[1]

(2) Whereas, the right to marry is fundamental because is supports a two-person union unlike any other in its importance to the committed individuals[2] and despite the fact that it has been understood for millennia to be a union between two people of the opposite sex;[3]

(3) Whereas, the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education[4] (and regardless the facts that same-sex unions can’t procreate and that children reared by same-sex couples fare worse than those raised in intact biological families);[5]

(4) Whereas, this Court’s cases and the Nation’s traditions make it clear that marriage is a keystone of our social order[6] (which we hereby determine to dismantle by judicial edict);

BE IT ENACTED BY THE SUPREME COURT OF THE UNITED STATES that the Constitution read as follows: Same-sex couples have the right to marry and their pretense of traditional family life must be recognized and protected in and by all States and all who oppose such unions shall be vilified and prosecuted for seeking to disparage the choices of same-sex couples and thus diminish their personhood.[7]

Formatting the Court’s opinion regarding same-sex marriage in the fashion of a legislative bill would be humorous were it not for that fact that most of the language above formed the basis of the majority’s decision to find within the Constitution a radical redefinition of marriage and enforce its acceptance in what once was one of the most religiously conservative nations on earth.

The opinion handed down on June 26, 2015, is already old news in our twenty-four-seven media culture. Since then, a lone shooter has accomplished in one murderous rampage what the Union Army could not even after the expense of over 600,000 American lives;[8] the Obama administration has given the Republic of Iran a clear path to develop nuclear weapons in a deal that not only bans U. S. inspectors, but also commits us as a nation to help Iran safeguard its program against sabotage;[9] and Mohammond Youssuf Abdulazeez has murdered four Marines and a sailor in Tennessee and the FBI thinks it “premature to speculate on the motives of the shooter at this time.”[10] Though all of these events are momentous in their own right; their significance pales in light of the societal shift that the Court has imposed upon America.

Liberals, Libertarians, Secular Humanists, and Evolutionary Atheists (who refuse to admit the inconsistency to their philosophy that same-sex unions pose) all have cause to celebrate the Court’s decision. But Conservatives, Constitutionalists, and yes, even Christians have much to be concerned about because the country they grew up isn’t the nation their children are inheriting.

Obergefell v. Hodges,[11] its opinion and dissents, should be required reading for all civic minded Americans. I offer the following synopsis as a primer to its framework.

Justice Anthony Kennedy delivered the opinion of the Court in which Justices Ginsburg, Breyer, Sotomayor, and Keagan joined. The Court delivered this opinion with a slim majority of one.[12] The other four justices – Roberts, Scalia, Thomas, and Alito – all wrote dissents. All the dissenters were nominated to the Court by Republican presidents. All those in the opinion were nominated by Democrats with the exception of Kennedy; which is evidence that being indoctrinated as a California lawyer speaks more of one’s philosophy than any political affiliation might.

Kennedy cited four “principles” which formed the basis of his decision. I have listed them above. I leave it to the reader to examine the original document and discover how much (or little) I have satirically added. Kennedy also relied heavily on three previous Supreme Court cases to make his point:

Loving v. Virginia, in which Mildred Loving, a black woman, and Richard Loving, a white man, sought to have their marriage recognized by the Commonwealth of Virginia; Zablocki v. Redhail, in which Roger Redhail, a man in arrears on child support payments was denied a license to marry his pregnant girlfriend, a woman; and Turner v. Safley, in which Leonard Safley, a male inmate of the Missouri correctional system, fought the state’s prohibition to marry P. J. Watson, a female inmate. It is from these three cases of one man seeking the right to marry one woman that Justice Kennedy weaves the Constitutional right for a man to marry a man or a woman to marry a woman; reason, tradition, or biology be damned.

I recognize that the cry against legislating from the bench is standard shtick for conservative commentators and politicians alike. But the accusation against this Court’s action comes from within the Court itself. Note the following from Chief Justice Roberts’s dissent:

“Allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental’ – and to strike down state laws on the basis of that determination – raises obvious concerns about the judicial role.” (Obergefell v. Hodges, 576 U.S. ____ (2015), Roberts, C. J., dissenting, at 11.)

“But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have the power to say what the law is, not what it should be.” (Ibid., at 2.)

“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.” (Ibid., at 3.)

“The majority purports to identify four ‘principles and traditions’ in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking.” (Ibid., at 10; internal citation omitted.)

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’ As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” (Ibid., at 3.)

Just who do they think they are, indeed. Nine judges: five in majority, four in dissent. An opinion more personally enforced than legally achieved. A watershed moving more earth than the belief that privacy has greater constitutional protection than the precious produce of procreation should enjoy. A denial of fact, an imposition of falsehood. The adult child of the sexual revolution has finally come home to rule the roost.

[1] Adapted from Justice Kennedy’s Opinion of the Court, Obergefell v. Hodges, 576 U.S. ____ (2015), at 12.
[2] Ibid., at 13.
[3] Ibid, at 3-4.
[4] Ibid, at 14.
[5] See some of the stats I shared in “Your Mama!”
[6] Obergefell v. Hodges, 576 U.S. ____ (2015), Kennedy, J., at 16.
[7] Adapted from Justice Kennedy’s Opinion of the Court, Obergefell v. Hodges, 576 U.S. ____ (2015), at 19.
[8] http://www.washingtonpost.com/news/post-nation/wp/2015/07/09/south-carolina-house-votes-to-remove-confederate-flag-from-statehouse-grounds, accessed 7/19/15; see also “Why We Have Mass Shootings in the United States”.
[9] http://freebeacon.com/national-security/iran-bans-u-s-inspectors-from-all-nuclear-sites, accessed 7/19/15.
[10] https://www.fbi.gov/news/pressrel/press-releases/fbi-statement-on-shootings-at-military-facilities-in-chattanooga-tennessee, accessed 7/19/15.
[11] http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf, 7/19/15. Though the Syllabus is a helpful overview, one should read the opinion as written by Justice Kennedy and then follow through on the dissents.
[12] Roe v. Wade was a 7-2 decision, a clear super majority.

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