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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:

http://www.uscis.gov/family/same-sex-marriages

Scientific views on marriage and monogamy

http://www.livescience.com/32146-are-humans-meant-to-be-monogamous.html

http://www.cnn.com/2013/06/21/opinion/laslocky-monogamy-marriage/

http://www.dailykos.com/story/2011/12/12/1044639/-Marriage-is-a-Social-Contract-Not-a-Sacred-Covenant#

Justifying homosexuality without justifying incest

http://amptoons.com/blog/2009/08/13/justifying-homosexuality-without-justifying-incest/

http://www.debate.org/opinions/is-it-inappropriate-to-compare-homosexuality-with-incest

The Fourteen Amendment:

https://www.law.cornell.edu/wex/equal_protection