Sean McDowell
Last Friday the Supreme Court released one of its most far-reaching and consequential rulings of this generation. Essentially, in Obergefell vs. Hodges, the court made same-sex marriage the law of the land. While the entire briefing is available online, below are some of the key quotes that capture the most important ideas stemming from this ruling.
The “Opinion of the Court,” written by justice Kennedy, offered a few key reasons for the ruling (which was predictable for those of us who have written on the subject). As far as I can tell, the key points are (1) Marriage has a history of continuity and change, (2) The right to marry is protected by the Constitution, (3) SCOTUS needs to protect individual autonomy, (4) Kids from same-sex relationships will suffer if their parents are not allowed to marry, and (5) Procreation is incidental to marriage, and (6) The Fourteenth Amendment guarantees equal protection under the law.
The most important quotes, however, came from the dissent by Chief Justice John G. Roberts. He raised a number of key issues that will be at the forefront of cultural discussion for years to come. Consider some of his statements below. These are written in direct response to majority opinion:
“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational [2].”
“The majority’s decision is an act of will, not legal judgment… 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? [3].
“This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship” [5].
“The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond” [5].
“The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage [as one man and one woman] has endured [8].”
“Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was [16].”
“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage…If ‘there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? [20].”
“Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges [26].”
“Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs [27].”
“The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses [28].”
“Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that ‘the necessary consequence’ of laws codifying the traditional definition of marriage is to ‘demean or stigmatize same-sex couples [28].”
“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it [29].