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Critical Thinking on Same-Sex Marriage Ruling

Friday, June 26, 2015 was a big day for same-sex couples in the United States, as 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”, said Obama from the White House Rose Garden.

This decision immediately aroused storms from the public – both supporters and opponents. Rainbow motif flooded most social media networks, often followed by intensive discussions about the right-or-wrong on this topic. This article aims to provide a comprehensive, neutral guideline of how to interpret this ruling.

The Ruling

It all began with the landmark case Obergefell v. Hodges. This lawsuit was about a same-sex couple, James Obergefell and John Arthur, married in Maryland became unrecognized in Ohio where they moved back to live. Arthur was terminally ill with ALS, and they wanted the Ohio Registrar to identify Obergefell as the patient’s surviving spouse on his death certificate. After a long juridical process, local courts turned them down, defending the ban on same-sex marriage. Obergefell then filed documents to ask SCOTUS to reconsider the case. This time, the rulings was in their favor.

Because of the ruling, every same-sex couple now have the right to get married in every state of America. States like Ohio, Michigan, and Arkansas which previously banned same-sex marriage started to issue such marriage certificates. In addition, every lawfully licensed marriage in one state is legal in all other states.

The Disputes

What on earth is marriage? Is it capable of change?

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, and has been in a process of constant evolution along with the social customs. For example: polygamy was once popular in the U.S.; before the 1970s, coverture required that a married couple is recognized as one person (usually the male).

History shows that the emergence of marriage was to secure the environment for the continuation of the species, protecting familial property and offspring by regulating sex activities. Sociology claims that marriage is crucial for societal stability, so society wants more people to get married. This is why it is very important for marriage to become desirable, as, according to anthropologic/biologic theories, marriage is against human nature (only 3% to 5% of all the mammal species are known to form lifelong pair bonds). That is to say, the definition of marriage ought to agree with the current public opinions.

The importance and the problems of #lovewins

Similar to the SCOTUS 5-4 ratio, U.S. citizens in favor of legalizing same-sex marriage take up 57% in 2015. For the majority, this decision is laudable; people from all over the places are celebrating using the hashtag #lovewins.

In fact, marrying for love is a relatively new concept beginning with Enlightenment. For a long time in history, marriage was mostly a socioeconomic transaction. The new concept is generally beneficial in helping marriage be more likeable, although issues such as infidelity arise. At the very least, #lovewins enhances the social positive power and encourages people to strive for success.

However, the logic of #lovewins is not completely safe. If love actually wins, polygamists, incestors, or any other minor group should be allowed to marry. Take incestors for example. The largest reasons to ban a brother from marrying his sister are immorality and possible defective posterity. Likewise, before 1974 homosexuality was identified as mental illness and documented in Diagnostic and Statistical Manual of Mental Disorders (DSM); not to mention how the story of Sodom and Gomorah views homosexuality. As for the posterity issue, heterosexual couples may also produce defective offspring, and homosexual couples could not produce offspring – what’s the stand? If the legalization of near-relation marriage comes with a ban on them producing offspring, would the public concur then?

Equality or Freedom?

As Anthony Kennedy wrote in the majority opinion, nowadays marriage is deemed as a profound institution which “embodies the highest ideals of love” that “may endure even past death”. All five consenting judges explained their rationale based on human dignity and freedom. They claimed that DOMA violates the Equal Protection clause of the Fourteen 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”, said the decision.

However, equality is not always as beautiful as it sounds. There is actually a tradeoff, also a bone of contention, between equality and freedom – equality limits freedom, and freedom hurts equality. An example related to the current issue would be the Deep South’s reaction: 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. It is obvious that as the improvement in some people’s equality right harms some other people’s religious liberty. In fact, this was one of the reasons the four dissenters held: this ruling has “potentially ruinous consequences for religious liberty”.

To think politically, the two major parties exactly represent the two sides: Democrat advocates equality (e.g. Obamacare), while Republican promotes freedom (e.g. free market capitalism). As president Obama is Democrat, and two of the nine judges were nominated by Obama (both are liberal and voted in favor of the ruling), could this ruling be a political arm of the federal government reaching into the rights of each State and its people? Could it be serving for the 2016 Election? Apparently this verdict is good for Democrat. For now, most Republican expressed opposition.

What’s SCOTUS’s duty?

While the five consenters focused on Equal Protection, the four dissenters all warned that SCOTUS this time has bypassed its role. “Under Constitution, judges have the power to say what the law is, not what it should be,” said John G. Roberts in his 29-page dissent, “The fundamental right to marry does not include a right to make a State change its definition of marriage…our Constitution does not enact any one theory of marriage”. In other words, they don’t hold against same-sex marriage, but they disagree to interpret Constitution in this way.

This ruling could be viewed as a dangerous signal. In usual days, under the trias politica (aka separation of powers) model of governance, Congress is the Legislative, President is the executive, and SCOTUS is the Judicial. The Congressional legislative procedure is a long journey: a bill passed by both houses of Congress moves on to the president, who has the right to veto, yet Congress could veto that veto. The complex process and all other checks and balances techniques ensure stability by preventing any branch from becoming supreme. However, SCOTUS always has the right to rule, and by creating precedent for the law, it indirectly makes new laws, aka “legislating from the bench”. Such ruling cannot be vetoed by any party – not by President, nor by Congress.

Therefore the four dissenters called it dangerous. Frankly speaking, SCOTUS does need the power to make laws in order for setting precedents and challenging questionable laws. Similar to why the concept of marriage should evolve, some laws should too develop with times. However, overusing this power even a little bit could jeopardize the credibility of the whole system because it is very easy to do so. That is why SCOTUS judges subscribe to a doctrine of judicial modesty – it requires the unelected nine judges form the least democratic branch to overrule what the other two democratic branches have decided only when the situation is urgent, e.g. the conflict between a law and Constitution is strong and clear, but not when the judges simply have different preferences or understandings on the subject matter. However, this time SCOTUS does not apply judicial modesty but instead it allows nine unelected persons, most from NYC, to convey their own opinions and force all 50 States to obey.

However, the five consenters considered this case similar to Loving vs. Virginia in 1967 which overturned bans of interracial marriage. At that time, the ruling not only ignored history but also went against the public opinions (only 20% of Americans were in favor of marriage between white and black people). However, SCOTUS thought that those bans violated the basic human right to marry which was the Court’s responsibility to protect. Many states started to issue marriage licenses to interracial couples after that ruling, and the public support toward interracial marriage steadily increased and reached majority in the 1990s. As for now, the five consenters believed that the current ruling not only protects the basic right of the few, but also flows with the public consensus. In their opinions, Constitution should be explained according to the background of the case – “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.

But why, then, the ruling of Loving vs. Virginia was 9-0, while the current one was 5-4? Further questions remain to be answered beyond the purpose of this article.