Recent history suggests the Supreme Court will rule in its favor, but it could still go either way
Perhaps one of the most public and controversial civil rights issues of this past decade has been for the legal right to marry the person you love. From 2004, when Massachusetts issued the first marriage licenses to same-sex couples to January of this year when the state of Florida became the 36th state to legalize same-sex marriages, it’s been an ongoing struggle of social movements, religious beliefs, legal rulings and precedents.
The United States Supreme Court denied reviews of petitions in seven states this past fall, which effectively meant same-sex marriages were legal in those states. With only 14 states left which do not recognize same-sex marriages, they have finally agreed to tackle this issue once and for all, announcing on January 9th that they will hear two and a half hours of oral arguments in April and deliver a ruling by June.
Many of those who advocate for the legality of same-sex marriages are already celebrating the upcoming ruling, certain it will be a sensible decision in favor of allowing all human beings to marry the person they love, regardless of gender. There have been scores of news and media articles sharing in the fervor of this upcoming momentous ruling, and while I don’t want to put a damper on this excitement, (and am personally hoping for this same positive ruling,) I want to look at the situation, briefly, from a logical and thoughtful perspective.
While the Supreme Court’s decision to hear arguments appears to be a progressive and proactive step and with a possible, even likely, outcome of same-sex marriages finally being legally recognized by the Federal Government in all 50 states, there are considerations that could potentially have undesirable effects regarding the final decision.
Is Same-Sex Marriage Constitutional?
The Court’s focus will be on decisions in four recent cases where the U.S. Court of Appeals for the Sixth Circuit upheld bans on marriage or marriage-recognition (in Kentucky, Michigan, Ohio, and Tennessee.)
The decision will be based on the following two questions regarding the constitutionality of same-sex marriage:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
For those of you who aren’t familiar with the actual wording of the Fourteenth Amendment, it reads,
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Supreme Court Justices
Nine human beings are going to decide the future of same-sex marriages. In other words, as it is with any controversial issue, and although these nine Supreme Court Justices won’t be debating personal opinions about gay marriage, we all know how personal beliefs sometimes get in the way of rational decisions.
The current Supreme Court Justices are simply men and women who were raised here and live in America with the rest of us. Men and women who are fostered with values and beliefs. Most of these Justices were born prior to 1960, (four of them in the 1930’s,) five were appointed by Republican Presidents, four from Democratic Presidents, six are Roman Catholics and three are Jewish.
We can look back through history to get an idea of past Supreme Court decisions in the volatile realm of human rights and constitutional interpretations. It’s not uncommon for the Supreme Court to overrule their own decisions even years later, nor for a Justice to admit he or she ruled in error.
In Bowers v. Hardwick (1983) the Supreme Court ruled there is nothing in the Constitution that “would extend a fundamental right to homosexuals to engage in acts of consensual sodomy” and upheld Georgia’s sodomy law. Yet 17 years later, in Lawrence v. Texas (2003) the Court ruled that privacy rights and due process protections extended to all citizens, including homosexuals. Then Justice Lewis F. Powell admitted regret of his decision in 1983, and said he made a mistake at that time.
In Plessy v. Ferguson (1896) the Court upheld the constitutionality of state laws requiring racial segregation in public facilities using the doctrine of “separate but equal.” In 1954’s Brown v. Board of Education of Topeka, Justice Warren stated “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
Pace v. Alabama (1883) the Court held that if a black person lived in adultery, fornication or marriage with a white person, they could face imprisonment, upholding the indictments of Tony Pace and Mary J. Cox. It was 81 years later – yes, folks – it was in many of our lifetimes, in 1967 when in Loving v. Virginia (1967) the Court overturned it’s decision.
Remember Justice Harry Blackmun? In several notable death penalty cases he ruled with the majority, yet over 20 years later, he stated in his dissent in Callins v. Collins (1994) that he had come to the wrong conclusions in those cases and could no longer support the death penalty as currently administered, and it “must be abandoned forever.”
Retired Justice Sandra Day O’Conner admitted she made a mistake in her decision in Bush v. Gore (2000), and enabling the 5-4 decision which allowed Bush to become President. She was well-known for being the swing vote in several high-profile decisions during her time on the Bench.
Some of you will look at the dates of some of these cases, and utter a statement similar to “Yes, but times were different back then.” And I would have to emphatically agree with you. That’s the point. Times change, people change, the Justices retire and new ones take their place.
Speaking of swing votes, changing times and minds…
In Planned Parenthood v. Casey (1992), Justice Anthony Kennedy originally voted to overturn Roe v. Wade, but before the Court announced the final decision, he changed his mind and turned the minority into the majority. Justice Kennedy also contributed to the end of DOMA as we once knew it in United States v. Windsor (2013).
Most importantly, and why I bring up Justice Kennedy, is that many believe he will likely be the swing vote in the upcoming ruling on same-sex marriage.
It Could Go Either Direction
Whatever direction the Supreme Court goes this year, it is important to realize that there are many hidden (and not so hidden) factors that could ultimately lead to a reversal of their decision. I’m not trying to put a damper on the excitement of LGBT activists, nor am I suggesting that religious leaders and wealthy conservatives could sway the Supreme Court’s decision.
If same-sex marriage is ruled constitutional, at least in 2015, then I will believe some of these current nine human beings (those who rule in favor) are fair, impartial and are capable of making a just decision. I have a hard time holding my breath, however, because politics, money and religion seem to have a way of intervening when it comes to civil liberties and human rights.
At the entrance of the Supreme Court of Justice, you’ll find the words “Equal Justice Under All.” It still is, isn’t it?
Back to the Fourteenth Amendment… Oxford’s definition of “liberty” reads “The state of being free within society from oppressive restrictions imposed by authority on one’s behavior or political views.” At this point in all of history, there are still those who have not been afforded liberty because of those pesky “oppressive restrictions.”
It shouldn’t even be a decision that has to be made. Nowhere in the Constitution does it mention marriage, and it certainly doesn’t claim it should be only between a man and a woman. This idea comes solely and completely from the interpretations of ancient religious texts. It is ludicrous that these texts have been used as the basis for the unjust treatment of U.S. citizens for hundreds of years.
Will American citizens finally be able to enjoy liberty and equal treatment under the law? Only during the next few months will we see how “just” these nine Justices will be when it comes to allowing U.S. citizens to legally marry the person of their choosing.