L'America: Obergefell v. Hodges

Just in time for Gay Pride parades in much of the world, the Supreme Court of the United States announced that marriage was a universal right that couldn’t be withheld from same-sex couples. The world turned rainbow for a day, much happiness and sadness ensued, and a few readers asked me to explain what happened. Here is my account for the America-challenged.

First, the ruling was not unexpected. In fact, the big suspense in June was whether it was going to be big majority or small majority ruling. It had been long clear that there was a small majority (5 of 9) that was going to rule in favor of gay marriage. It had also long been clear that three judges (Scalia, Alito, and Thomas) would vote against gay marriage no matter what. The big question was whether the youngish Chief Justice, Roberts, would vote with the majority or the minority.

I am not saying this was a foregone conclusion in hindsight. Things had been clear for about a year: ever since the related ruling in United States v. Windsor, Federal Appeals Courts all over the country had been ruling that excluding same-sex couples from marriage was unconstitutional. The Supreme Court, when asked to overturn those rulings, refused to do so. It took up the case only when one Federal Appeals Court, the one for the Sixth Circuit, ruled the other way.

What this means is that for a year, gay marriage had been legal in much of the United States because the Supreme Court didn’t see anything wrong with it. To come now at the proverbial eleventh hour and reverse those rulings would have meant major chaos throughout the legal system. What would happen with the marriages contracted in places, like Utah, where gay marriage had been forced by a Federal Court?

In particular, it takes only four Justices to take on a case. If none of the gay marriage cases went to the Supreme Court as long as they favored it, it could only mean that there weren’t even four Justices willing to bet they would get a ruling to overturn. It was clear to the Supreme Court that there was only one way out of this: gay marriage was going to be eventually the law of the land.

That doesn’t diminish the landmark nature of the ruling, of course. Not everyone is a Supreme Court geek like me. And there is quite a difference between “eventually the law of the land” and the actuality of it. Also, it was heart-warming to see the cheering all around the world. It didn’t go unnoticed that America’s traditional enemies are also foes of gay marriage, while America’s traditional allies are more or less ahead of America.

When talking about the opinions of the court, both the decision and the dissents from it, I am somewhat underwhelmed and disappointed. The decision, by Justice Kennedy, talks a lot about feelings and emotions and very little about the legal substance of the case. It talks at length about dignity, about families, about core values, where it probably should have been more strictly focus on the law.

The law, in this case, is not complicated. The courts have tried to find a rationale for why same-sex couples should be barred from marriage and haven’t found any. In particular, legal differences between husband and wife have long been discarded as irrelevant. There is no difference in the eye of the law. The husband may still need a tuxedo, the wife a wedding dress. There may be best men and bridesmaids with hideous dresses at the wedding. But that is all nothing to the law. Man and woman are equal in marriage.

If man and woman are so equal in marriage that they are both just spouses to the law, why shouldn’t a man be able to marry a man, or a woman a woman? From a legal perspective, the answer is a no-brainer: there is no reason. The two are functionally the same, so there is no reason to exclude a man from the position of wife. In fact, that position doesn’t even exist.

Arguments against ran in two streaks: There were traditionalists, that claimed that marriage has always meant one man and one woman and that a change to that means a change to the whole institution. And there were pessimists, that saw the expansion of marriage to gay couples as an introduction to “worse” things like incest, pedophilia, polygamy, and bestiality.

The traditionalist argument is mostly cute and not of substance. The fact that something has been done for a long time has no value to the law and shouldn’t have any value to the law. In fact, it should be a reason to doubt that something is lawful, because we tend to do things out of inertia even when they are not acceptable legally.

Also, as mentioned, marriage and weddings in particular are steeped in traditions that we hold very dear, but that have no legal standing. We do not arrest a groom for wearing a white robe, and we do not automatically charge the cost of the wedding to the bride’s parents. We do not consider it abuse if the newlyweds don’t go on their honeymoon to Bali, but we do find those traditions cherished and a deviation from them notable.

In that sense, having two women marry is no different than a skydiving wedding. It is very non-traditional, but no reason to stop it. Now, notice how I am conflating marriage and wedding here. I am doing so because the traditions surrounding marriage (what happens after the wedding’s over) have long died out. Those cherished traditions included the (Bible-sanctioned!) breadwinning husband and the home-maker wife. We do not hold those traditions dear at all, despite what the Justices said.

Pessimist arguments are mostly funny, because they show their own bias in such clarity. When you posit that allowing gay marriage will lead to bestiality, you imply that they are moral equivalents. You assume that “gay” is a moral wrong that is just a little less visible as such to the uninformed masses as bestiality. While it’s universally obvious that having sex with a horse is a bad thing, some people seem to have gotten the wrong impression that having sex with a member of your own sex is not as much.

The problem with the pessimist argument is that it considers gay marriage an extension of marriage, whereas it is patently not. “Traditional” marriage, instead, is patently an exclusion of certain people. So much so that legislation had to be changed everywhere, specifically to preclude gay marriage. Because until the women’s liberation movement, the differences in roles between husband and wife were so clear that only a man could apply for one role and a woman for the other.

The dissenters were firmly lodged in the traditional roles of gay marriage opponents. The most disappointing dissent came from the Chief Justice, who pretty much said that gay couples should have continued pursuing their quest for recognition in the political realm, instead of having the Constitution throw a roadblock to discussion. He meant that it would have been a greater victory for gay marriage if it had been achieved by convincing instead of forcing.

The reason this logic is disappointing (though accurate) is that same-sex couples really don’t care too much about convincing others. They care about spousal benefits, social recognition, stability, legal rights. To the opponents of gay marriage, like to the opponents of most minority rights, this is about conviction. To those to whom those rights are denied, it is not about conviction, it is about tangible things.

Which is the crux of the matter: nobody, especially not gay marriage opponents, is harmed by gay couples getting married; on the other hand, gay couples being denied marriage is a tangible problem. It’s not about activist trying to cry foul at the injustice of the world: it’s about having to pay $363,053 in estate tax you wouldn’t have to pay if your marriage was recognized. (United States v. Windsor)

So, yes, it would have been a greater victory if it had happened by convincing people. But that would take decades, and Edith Windsor would have had to pay $363,053 in taxes. I could see how convincing people across the country that she was right was not high on Mrs. Windsor’s priority list.

Since I am talking about dissents, you really should read Justice Scalia’s. If I didn’t know that Supreme Court opinions (including dissents) are generally written by clerks, I would think it is a visible sign of the Justice’s failing intellect. He rails against the hubris of the majority, who decided there was a right (to gay marriage) that had eluded every single state in the country for 135 years (since the passing of the 14th Amendment, which is what the majority’s ruling is based on).

The problem with Scalia’s logic is that he said himself in 2003 that making gay sex legal would automatically mean that gay marriage would eventually be legal. Twelve years ago, in his dissent in Lawrence v Texas, Justice Scalia wrote:

“This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

Of course, the dissent back in the day was rooted in the idea that gay people didn’t have a right to have sex in the privacy of their homes. Much of the dissent was focused on the notion, just as in this case, that the Constitution doesn’t address a right to gay anything, and hence there is no constitutional right to gay anything.

Of course, the problem with this logic is that it’s hypocritical. When it suits Justice Scalia, suddenly the Constitution says all sorts of things that are really hard to find in the text. The case that comes to mind is Citizens United, where the Supreme Court (again) found that money is a form of free speech, and that corporations are people that have a right to free speech.

I am pretty sure the Constitution doesn’t say either of those things. Not only that, the Framers of the Constitution certainly didn’t have PACs and trillion dollar campaign funds in mind. But when it is politically convenient, suddenly reading the text so expansively that one’s head needs to be scratched is perfectly fine.