SCOTUS on Same-Sex Marriage

The recent SCOTUS decision marks an incredible victory for LGBT people and a huge step forward in the march toward equal rights. The majority opinion by Kennedy was quite well written and at times moving, as can be seen in the oft-shared closing paragraph. The argument was also rather clear, with constant reference to the 14th Amendment, that it is unconstitutional for a state to prevent a same-sex couple from getting married on the grounds of it being a same-sex couple. Although I don’t love the liberal reasoning of negotiating rights without consideration of the good, I am quite happy with the decision nonetheless.

Kennedy’s majority opinion did have a few awkward and quite poorly worded sections, though, that could be read as disparaging of non-married people, such as:

Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations. (p. 3)

What’s really striking to me is how Alito, Roberts, Scalia, and Thomas all dissented. Their position, which each takes the time to pen in his own voice, is rather straight forward: marriage isn’t a constitutional issue and should thereby not be ruled upon by the court. While it seems to me they’re correct that marriage as such is not a Constitutional issue, they miss what they’re being asked to do, which is not to determine the nature of marriage but to decide whether marriage laws are subject to Constitutional precedent.

The central issue here, which it seems all four dissenters miss entirely, is that marriage is in fact a legal contract granted by each state protected and delineated by laws and therefore – like any other state or federal legal matter in the country – is subject to the Constitution. In its first section the 14th Amendment mandates:

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.

Whether or not state laws equally apply to and protect all citizens is very clearly a Constitutional concern. I see essentially two ways to think through this, the first in terms of an arbitrary violation of the Due Process Clause and the second in terms of discrimination under the Equal Protection Clause.

First, a state law that nobody can marry a person of the same sex/gender is arbitrary and violates the the 14th Amendment’s protection from state’s depriving “any person of life, liberty, or property, without due process of law.” So long as marriage is a matter of law you can’t just say, as a blanket rule, that marriage is off limits to some people, namely those who want to marry people of the same gender/sex. You don’t have to define marriage to rule that marriage laws which deny legal contract to certain people based solely on the gender/sex of their partners is unconstitutional.

Second, it’s also possible to rule, again without defining marriage, that it is unconstitutional to say a man can marry a woman but a woman cannot marry a woman. Because marriage is a unique legal union, to deny a woman from marrying another woman simply because the person is a woman is to discriminate on the grounds of sex/gender alone.

Both of these emphasize the fact that, and this is very clear for the majority opinion, marriage is a right. To be more clear, entering into the legal contract of marriage is a right insofar as it is a legal act of individual liberty. An individual’s legal right to do so cannot be precluded by arbitrary or discriminatory laws.

I do think that the dissenting four justices are correct to assume that the majority opinion does indeed change the legal definition of marriage. But it doesn’t do so directly. The majority do not strive to figure out what marriage is in order to decide whether it should take place between certain people. Rather they affect its definition by determining whether or not its granting is done Constitutionally.

Does this open the door for polygamy, then? No. First, though, it must be said that SCOTUS cannot (should not) be against polygamy for religious or any other ideological reasons. SCOTUS would have to rule on its Constitutionality.

It’s true that some of the reasoning above could be made for polygamy to become legal. However I don’t think SCOTUS would go for it. The equal protection argument doesn’t work because you wouldn’t be claiming someone is being discriminated against because she is a woman (or he is a man), rather you’d have to claim that someone is being discriminated against because s/he is in love with two people…which isn’t discrimination. The claim isn’t that a person is being prevented from marrying another for some reason, but rather because it’s to more than one person. It seems to me that SCOTUS could say that in the case of polygamy there is no Constitutional violation. If it’s intrinsic to the established legal definition of marriage to be a union between two people, so long as people aren’t discriminated from entering that union for arbitrary or discriminatory reasons its definition is not unconstitutional.

It isn’t unconstitutional to say that marriage is legally a unique union between two people. It’s unconstitutional to say that it is only this between people of the opposite sex.

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