Monday, June 29, 2015

Of Courting and Marriage

To no one's surprise, the Supreme Court declared that a somewhat archaic eighteenth-century document and one of its somewhat archaic nineteenth-century amendments granted the right of same sex couples to marry. 

It just took us a couple of hundred years to learn it.

The Supreme Court ruled by a 5-4 majority in Obergefell vs. Hodges that the United States Constitution requires that states issue marriage licenses to same sex couples.

You can read the complete majority opinion of and the dissenting opinions here.

The decision was no surprise to any one after the Supreme Court ruling against the Defense of Marriage Act. Everyone knew where the court would come down on the question of same sex marriage and knew who would write the majority opinion--Justice Anthony Kennedy. He showed his hand so to speak in his intemperate comments regarding those who supported DOMA--in his words a "bare congressional desire to harm a politically unpopular group." He basically labeled President Barack Obama, Vice-President Biden, former President Clinton, the future presidential candidate Hillary Clinton, 342 United States Representatives and 85 Senators BIGOTS.

The legal basis of the decision rests upon the 14th amendment,  That amendment sought to protect the former slaves from legal disabilities imposed by states that might jeopardize their newly won freedom. Congress was especially concerned about blacks who traveled or moved out of their home state. In the decades before the civil war, many states refused to allow free blacks to enter their jurisdictions. Others required that free blacks post bond while traveling through the state for work or if they desired to live in the state. 

In fact, the 14th amendment actually echoes the provisions of Article IV of America's first constitution, the Articles of Confederation:

"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State."

The 14th Amendment simply intended to extend these basic privileges and immunities to black citizens. The 14th Amendment had nothing to say about equal rights for blacks, women, homosexuals, or anybody else for that matter.

Although the history, circumstances, and limitations behind the passage of the 14th amendment are well known, Justice Kennedy wrote this fanciful characterization: 

"The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed"

Justice Kennedy offered no evidence in his opinion for this claim. And there is good reason why he did not. 

There is no evidence.

The citizens of this country apparently lacked the "learning" about freedom and the "new insight" to which Kennedy alluded. This is why citizens consistently rejected attempts by state legislatures and state courts to expand marriage laws to includes same sex couples.

Kennedy wants to be our teacher.

That vacuous passage is about the extent of Kennedy's allusions to the Constitution. As in most Supreme Court opinions, Kennedy devoted most of the text to discussion of  Supreme Court's jurisprudence on the issues of marriage, privacy, homosexuality, liberty, and equality. That is the problem with our judiciary. As the courts build precedent upon precedent, their jurisprudential edifice moves ever more distant from the Constitution and the historical context, intents, and actual words of its provisions.

In his majority opinion, Justice Kennedy also wrote passionately about the special nature of marriage and the desire of same sex couples to live together in its bond. He retold the stories of the plaintiffs and the hardships they faced because state laws prevented them from enjoying the marriage bond. Kennedy shares the assumption of same sex marriage advocates that the lack of recognition of same sex marriage "stigmatizes" them. Because marriage laws remain some of the last remaining laws that distinguish people based upon their sexual orientation, Kennedy and other advocates of same sex marriage believe that removal of these marriage laws will result in the removal of this stigma.

Kennedy's sociology appears to be no better than his history. The lack of same sex marriage rights is not what stigmatizes same sex couples. Homosexuality itself is the stigma. For all of recorded history, even before the rise of the monotheistic religions notorious for their hostility to homosexuality and in cultures far removed from the influence of those religions, homosexuals have been whispered about, sneered at, mocked, physically abused, and even killed. Even 20th century communist regimes, officially atheist,  condemned homosexuality as "bourgeois egotism" and suspected homosexuals of serving as agents of "counter-revolutionary imperialism."  And the lack of "marriage equality" had nothing to do with it.

Contemporary Americans exhibit much more toleration (at least publicly) that previous generations. The fact remains, however, that large numbers of Americans believe that homosexuality is a sin, a biological anomaly, unnatural,  or, in the words of those following their feelings rather than any thoughtful consideration of the issue--"just plain weird." And for these and a host of other reasons and feelings remain cool to the idea of same sex marriage.

Kennedy and other advocates of same sex marriage exhibit an incredible amount of naivete in believing that simply a change in the law will transform hearts and minds.

And because the way the law was changed, not by deliberation of citizens but  by judicial fiat, it actually may make things worse. Doubters should simply reflect on the way that the Supreme Court's decision in Roe vs. Wade transformed a civil and even conservative approach to reform of abortion laws into a "culture war."

Below, another legendary constitutional scholar who opposed same sex marriage on religious and constitutional grounds:

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