US same-sex marriage decision avoided the tough questions
What you need to know:
- Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas appended a dissenting opinion in which they lamented the majority decision.
- "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be".
- Tradition, history, majority, custom, convenience and fashion are not final, acceptable answers in such deep, life-changing matters.
George Orwell’s classic novel 1984 ends when the hero, “the last man”, Winston, finally succumbs to the dictator’s torture and abandons his last remaining principle, that two plus two equals four:
“His thoughts wandered again. Almost unconsciously he traced with his finger in the dust on the table: 2+2=5.”
His will had been shattered, his reality broken. The abolition of truth, in this case mathematical truth, had destroyed freedom and all that remained were party lines. Four equals five, if the party line says so.
Gavan Jennings made the above thought-provoking analogy between Orwell’s futuristic novel and today’s marriage battle. For Jennings, the recent U.S. Supreme Court decision in the case of Obergefell v Hodges settled the same-sex marriage equation with the conclusion of "man+man=marriage".
Truly, in the case of James Obergefell et al v. Richard Hodges et al, the US Supreme Court made a historic decision. In this decision, the Supreme Court cemented same-sex marriage in all states across the US. This bold move has evoked mixed reactions from different quarters.
The court had been called upon to determine issues central to the prevalent debates on same-sex couples and their recognition under the law.
The petitioners, fourteen same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home states, claiming that respondent state officials violated the Fourteenth Amendment of the US Constitution by denying them the right to marry or to have marriages lawfully performed in another state given full recognition.
The court, through a five-to-four majority decision, held that “the US Constitution’s Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”
Justice Kennedy, writing for the court, recounts the centrality of marriage as “the first bond of society” by reference to sages and philosophers throughout annals of human history.
He concludes that these understandings of marriage were based on a conception of marriage as a “union between two persons of the opposite sex.”
Later, he expounds on the nature of marriage, to wit: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”
'NOT A LEGISLATURE'
Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas appended a dissenting opinion in which they lamented the majority decision, which counts as a considerable success for supporters of same-sex marriage.
The three judges observed:
“Five lawyers [the majority was constituted by five Justices] have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
Justice Scalia describes the background of each of the nine judges, or Supreme Court Justices, who participated in the decision:
“Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers, who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in East and West Coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”
This argument is further expounded by Chief Justice Roberts, when he says:
“this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise neither force nor will but merely judgment.”
Scalia questions how this bench, which cannot be held to be representative at all, is to decide on matters of fundamental importance to society and to all US states.
The dissenting judges further questioned if “the decision on whether the institution of marriage should be changed to include same-sex couples should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.”
The obvious impression one would get from this decision is: “this is it; the debate on marriage and family is a done deal.” Was the US Court acting as a court of law or morality?
Justice Antonin Scalia once remarked that “I have noticed increasingly in recent years that judges - not just in my country, but internationally - have taken on this function of being moral arbiters for the world” and further, “If judges are routinely providing society’s definitive answers to moral questions on which there is ample room for debate - rather than merely determining the meaning, when enacted, of democratically adopted texts - then judges will be made politically accountable.”
WHY WE MARRY
A few weeks ago, I quoted Harvard professor, Michael Sandel. Sandel’s ideas come in handy once again; he speaks of the need to rediscover the art of democratic debate.
He says that it is pointless to pretend that any truly democratic debate is devoid of certain underlying moral principles, religious convictions and philosophical questions: the more we deny our personal biases, the less sincere the debate becomes and the more we lie to ourselves.
Sandel says that it is simply not possible to hold meaningful democratic debate if we fail to address society’s underlying conception of what is worthy to be honoured and what the essential purpose of institutions is.
In Obergefell v Hodges, Chief Justice Roberts touched on this matter when he said:
“the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.”
In spite of the sober debate that reigned throughout the decision, it seems clear that both sides, proponent and dissenting judges, steered away from the crux of the matter.
The majority based their decision on pragmatic and fashionable grounds, while the dissenting judges disagreed on democratic, historical and traditional grounds.
Both sides failed to heed Sandel’s advice and delve deeply into the philosophy of marriage: what’s marriage all about? Why does marriage exist? What defines its substance, elements and attributes?
To answer these questions is a must. Otherwise people, regardless of their opinion and sexual orientation, will suffer. Societies will implode.
Obergefell v Hodgeshas already triggered deep animosities that could jeopardise the genuine tolerance it was intending to trigger and protect. These tensions were already reaching their peak in Houston, Texas a few months ago.
THE ULTIMATE CONSEQUENCES
The mayor of Houston, Annise Parker, issued the hotly contested Houston Equal Rights Ordinance (HERO). Under one of the parts of the ordinance, transgender people who are barred access to a restroom (whichever they chose, ladies or gents) would be able to file a discrimination complaint.
The ordinance was hotly contested and more than 50,000 signatures were collected in record time. A group of Christians sued the city.
In response, city attorneys issued subpoenas to local pastors. The city sought “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession,” according to the Houston Chronicle.
Later, Parker withdrew the subpoenas. She said: “The reverends came without political agendas, without hate in their hearts. They simply wanted to express their passionate and very sincere concerns about the subpoenas.”
Princeton University professor, Peter Singer, the animal rights champion, elicits another aspect of this social tension. Singer argues bizarrely in favour of sodomy and bestiality:
“Not so long ago, any form of sexuality not leading to the conception of children was seen as, at best, wanton lust, or worse, a perversion. One by one, the taboos have fallen. But not every taboo has crumbled. Sex with animals is still definitely taboo. Sex with animals may be occasionally mutually satisfying; it does not always involve cruelty…and it ceases to be an offence to our status and dignity as human beings.”
How far can we push the limits? Have we foreseen the ultimate consequences of our actions? Have we gone wrong, or is humanity in the right path?
When questions are not properly answered, reality checks on us. Tradition, history, majority, custom, convenience and fashion are not final, acceptable answers in such deep, life-changing matters.
Emotions and hatred must be set aside, for if we do not live the way we think we will end up thinking the way we live, no matter how unsound or contradictory it may be.
This is what Arthur Koestler calls the “terrible compulsion” to follow one’s own internal logic through to its final and terrible consequences, where two plus two could easily equal five.
Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi
