How to Interpret Same-Sex Marriage Ruling
Friday,
June 26, 2015 was a big day for same-sex couples in the United States, as the
Supreme Court of the United States (SCOTUS) ruled 5-4 in favor of same-sex
marriage across the country. This ruling granted loving same-sex couples “the
dignity of marriage across this great land”, according to Obama from the White
House Rose Garden.
This
decision immediately aroused great reaction from the public. Rainbow motifs
flooded most social media networks, often followed by intense discussions about
the complications and benefits of same-sex marriage.
The Ruling
It
all began with the landmark case Obergefell
v. Hodges. James Obergefell and John Arthur were a same-sex couple married
in Maryland, but they were unrecognized when they moved to Ohio. As local
courts defended the ban on same-sex marriage, Obergefell appealed to SCOTUS.
The
ruling grants every same-sex couple the right to get married in every State in
America. In addition, any lawfully licensed marriage in one state is legal in
all other states.
Several Disputes
- Marriage as what it was, or marriage as what it
can be?
The
core of this case lies in the definition of marriage. Conservatives claim that
marriage should be between a man and a woman, as Defense of Marriage Act (DOMA)
defines. The majority opinion, on the other hand, claims that marriage is
capable of change and it has been constantly evolving. For example, polygamy was
once popular in the U.S. The law could change as well; before the 1970s, the
law of coverture recognized a married
couple as one person, too often ignoring the rights of the female’s side.
Why
should it change, though? Sociology believes that marriage is crucial for social
stability as it fulfils the functions of forming family, procreation,
childrearing, etc. However, according to anthropologists, only 3% to 5% of all
the mammal species are known to form lifelong
pair bonds, so marriage may be against human nature. This is why it is very
important for marriage to be desirable. One way to do so is to define it conforming
to the current public opinions.
In
short, now that the general public supports same-sex marriage, the law should allow
it.
- Is it really #lovewins?
Marrying
for love is a relatively new concept emerging from the Enlightenment. For a
long time in history, marriage was mostly a socioeconomic transaction. This new
concept helps enrich the meanings of marriage, which enhances the social
positive power and Fill the World with Love.
However,
the logic of #lovewins is untenable. If love actually wins, why couldn’t people
such as polygamists and incestors be allowed to marry, as long as it happens
between two consenting adults? Some argue that this is a logical slippery slope.
But is this analogy really an extreme hypothesis? Take incestors for example. Picturing
a brother sexually appealed by his sister may make you sick. But could that be
the reason for banning incest? Before 1974, homosexuality was identified as
mental illness in DSM, a professional manual to diagnose mental disorders; not
to mention how the story of Sodom and Gomorah discourages homosexuality. Most
straight people today still feel uncomfortable picturing homosexual romance. If
same-sex couples can fight their ways from being unsupported by the people to
become recognized by the law, could sibling couples do the same thing? Why does
the homosexual love win, while incestuous love lose? Writer John Wright wrote,
“Give me an argument justifying homosexual relations on grounds which do not
answer as well or better for justifying incest.”
In
fact, this has been an old debate. There are many persuasive arguments, but none
should be about how #lovewins. So for this ruling, love has won for sure, but
some other considerations definitely won, too.
- Equality or Freedom?
In
the majority opinion, Justice Anthony Kennedy wrote, nowadays marriage is
deemed as a profound institution which “embodies the highest ideals of love”. All
five consenting justices explained their rationale based on human dignity. They
claimed that DOMA violates the Equal Protection clause of the Fourteenth
Amendment, as legal bans on same-sex marriage would put homosexual couples in
an unequal situation. “Same-sex couples have the same right as opposite-sex
couples to enjoy intimate association”, according to the ruling.
However,
there is a tradeoff between equality and freedom. This time, the improvement in
homosexual people’s equality right harms some other people’s religious liberty.
For example, Texas Attorney General said Texans must “act on multiple levels to
further protect religious liberties for all Texans”. About one-third of Alabama
counties refused to grant licenses to same-sex couples, or even shut down
marriage license operations altogether. These conflicts substantiate what the
four dissenting justices worried about: this ruling has “potentially ruinous
consequences for religious liberty”.
So
which do Americans want more, equality or freedom? Typically, the two major
parties represent equality and freedom respectively – Democrat advocates
equality, and Republican advocates freedom. Their competition usually keeps the
balance of equality and freedom for all people in the U.S. The current ruling
is politically beneficial for Democrats as the subject is much more contentious
among Republicans. Notice that the current President is Democrat, and he
nominated two of the nine justices, both of whom are considered liberal and
voted yes on the issue. Also notice that the opposing states such as Texas and
Alabama are red states. Could this ruling affect the Election 2016?
Equality
or Freedom? Maybe political.
- Has SCOTUS bypassed its role?
While
the five consenters focused on Equal Protection, all four dissenters warned
that SCOTUS has bypassed its role this time. “Under Constitution, judges have
the power to say what the law is, not what it should be,” the Chief Justice of
SCOTUS, John G. Roberts, wrote in his dissent, “The fundamental right to marry
does not include a right to make a State change its definition of marriage”. In
other words, “whether same-sex marriage is a good idea should be of no concern
to [the Justices]”; “[t]he people of a State are free to expand marriage to
include same-sex couples, or to retain the historic definition”. It should be a
decision made by the people of each State separately, but not by nine unelected
Justices forcing the entire nation to obey.
In
their understanding, the trias politica
(aka separation of powers) model is designed for checks and balances, the techniques to the limit power of Congress,
the President, and SCOTUS, preventing any of them from becoming supreme. Based
on this fundamental principle, SCOTUS should not legislate from the bench (i.e. justices create new laws) unless it
is an urgent situation, as the doctrine of judicial
modesty requires. It is a very bad idea for the nine Justices to listen to
the general public because they were appointed, not elected, exactly for the
purpose of staying away from “public sound”. Very often, “public will” cannot
represent the silent majority.
However,
the five consenters considered this case similar to Loving vs. Virginia in 1967 when SCOTUS decided to allow interracial
marriage, defending the “basic human right to marry”, while only 20% of
Americans supported it. That ruling resulted in a more inclusive, less
discriminating society. Likewise, in this case they hold that Constitution
should be explained according to the background of the era – “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”, Kennedy wrote.
Worth
mentioning, prior to Loving vs. Virginia,
the interracial couple, the Lovings, were arrested twice due to the ban on
interracial marriage. Therefore, the situation then was considered more urgent
than what happens to homosexuals today, as U.S. citizens in favor of legalizing
same-sex marriage take up about 57% in 2015.
Last Word
If
you are a homosexual before the 70s, you might be identified as a psychopath;
now if you are against same-sex marriage on grounds of “immorality”, you may be
criticized as a bigot or a homophobe. Whichever side you take, you may want to
know what you are really supporting.
Marriage
protects the relationships between life partners, not the love between them. The
spirit of #lovewins should be the indiscrimination toward the minorities. Every
person deserves to spend his/her life with a partner, rear kids together, and
share property. On this ground, getting marriage should not be anyone’s privilege.
Reference
Immigration
Office FAQ about same-sex marriages:
Scientific
views on marriage and monogamy
Justifying
homosexuality without justifying incest
The
Fourteen Amendment:
The
evolution of marriage in the U.S.
Public
reactions to the ruling
Roberts's
dissent on Supreme Court same-sex marriage ruling
Anti-miscegenation laws in the United States
Reaction
from the Deep South
The
nine judges of SCOTUS
Legislating
from the bench
What
is Wrong with the New Right of Marriage?
How
could same-sex marriage affect religious liberty?