Tuesday, June 30, 2015

A More Perfect Union

Few concepts are as fundamental to life, liberty and the pursuit of happiness as the right to marry the person of one’s choice. For those who love liberty and believe in the dignity of humankind, this has been a good week. The Supreme Court, in an eloquent opinion authored by Justice Anthony Kennedy, declared once and for all that marriage equality is the law of the land. “The right to marry is a fundamental right inherent in the liberty of the person,” wrote Justice Kennedy in Obergefell v. Hodges, “and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”

Obergefell is a logical extension of the 1967 Supreme Court decision in Loving v. Virginia, which ruled unconstitutional Virginia’s prohibition against interracial marriage. A watershed moment in American legal history, Loving called the freedom to marry “one of the ‘basic civil rights of man’” and recognized that the Fourteenth Amendment would be meaningless if the government could deprive an interracial couple the right to express their love in a lawfully sanctioned marriage simply on account of race. “Under our Constitution,” declared Chief Justice Earl Warren, “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

At the time of Loving, Virginia was hardly alone in outlawing interracial marriage. Indeed, many Americans believed that allowing blacks to marry whites violated God’s will and the laws of nature. Democracy had not yet caught up with more enlightened views of liberty and equality. And no one disputed that when the Constitution was first authored, in the days of Jefferson and Madison, when racial inferiority and slavery were acknowledged as the practical realities if not the principles of America’s founding documents, prohibitions against interracial marriage were the rule, not the exception.

But times and context change, as does society’s understanding of constitutional principles. By 1967, nearly 190 years after the nation’s founding, more than a century after Union forces fought and won a civil war, thirteen years after the Supreme Court in Brown v. Board of Education ruled segregated public schools unconstitutional, three years after Congress passed sweeping civil rights legislation outlawing segregated lunch counters and other public accommodations, times had most certainly changed. The Court brought us as a country to a deeper understanding of the Constitution’s core principles.

Nearly a half-century after Loving, many of the same arguments made against interracial marriage were made against same-sex marriage – that the issue of marriage rights is a matter best left to the states and the political process; and that such marriages are a radical departure from centuries-old notions of traditional marriage deeply embedded into the nation’s social fabric.

The beauty of the American Constitution, however, is that under its protections all citizens are granted the same rights and privileges regardless of majority sentiment or the whims of particular state governments. “The Constitution promises liberty to all within its reach,” Justice Kennedy wrote in Obergefell. The petitioners desired simply to enforce the Constitution’s promise of liberty, to uphold the dignity of marriage, and to respect its enduring value as an institution. “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect – and need – for its privileges and responsibilities.”

Justice Kennedy emphasized that the case was not about the right of “same-sex marriage,” but the right of same-sex couples to enjoy the same privileges and benefits granted opposite-sex couples. Just as the petitioners in Loving sought not a “right to interracial marriage” but a right to marry irrespective of race, the petitioners in Obergefell sought the right to marry irrespective of gender. In each case, the petitioners sought “the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.”

Although public opinion in recent years has advanced rapidly in favor of marriage equality, there remain Americans who disagree with same-sex marriage on the grounds of sincerely held religious beliefs and long-held notions of traditional marriage. These Americans have the freedom to believe and speak as they wish. “But when that sincere, personal opposition becomes enacted law and public policy,” instructed the Court, “the necessary consequence is to put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”

To prohibit same-sex marriage violates the dignity and liberty of the couples affected. To recognize same-sex marriage causes no recognizable harm, restricts no one’s liberties, and violates no one’s rights. “The limitation of marriage to opposite-sex couples may long have seemed natural and just,” noted Justice Kennedy, “but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

The four dissenting justices in Obergefell contended in different ways that the Court’s decision was an attack on democracy, an invalid exercise in policy making by five unelected justices; in short, full-fledged judicial activism. Although the view that the courts should generally defer to the elected branches is a defensible position, the four dissenters have been highly selective in their applied deference to democratically enacted laws. By overruling congressional attempts to regulate money in politics (Citizens United) and imposing restrictions on the availability of guns (District of Columbia v. Heller), the dissenting justices have secured a solid footing in the judicial activist camp.

For Justice Antonin Scalia, the answer to the question presented in Obergefell was simple: “When the 14th Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” But if Scalia’s reasoning is correct, then it logically follows that state-sanctioned racial segregation in education and housing are constitutionally permissible despite modern understandings of the Fourteenth Amendment.

Though history and tradition are important to constitutional interpretation, the Constitution does not require that we apply 18th century morality and values to 21st century controversies. “The nature of injustice is that we may not always see it in our own times,” wrote Justice Kennedy. “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. . . . Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”

In rendering constitutional decisions and interpreting open-ended phrases such as “liberty” and “equal protection,” value judgments are a given. It is why the power of the President to nominate Supreme Court Justices is so important. There are no neutral principles that allow Justices to adjudicate basic questions of political morality and the essence of liberty, equality, and the claims of minorities in a democratic society. Ever since Marbury v. Madison, when the doctrine of judicial supremacy took hold and the Supreme Court was established as the final arbiter of the Constitution’s meaning and effect, it has been the proper role of the judiciary to interpret and apply the Constitution in the context of the changing times in which we live. Indeed, the meaning and understanding of core concepts may change or expand as society progresses, technology advances, and the course of history unfolds.

As James Madison insisted in The Federalist Number 10, democratic legitimacy requires that the interests of minorities be protected against majorities who deny or unfairly discount their rights and interests. In Democracy and Distrust (Harvard University Press, 1980), constitutional scholar John Hart Ely explained, “the duty of representation that lies at the core of our system requires more than a voice and a vote. No matter how open the process, those with most of the votes are in a position to vote themselves advantages at the expense of others . . .” Democracy is thus enhanced when the courts closely scrutinize laws that disadvantage minorities long victimized by prejudice and discrimination.

In the end, the majority opinion in Obergefell was a simple statement of human equality, dignity, and individual liberty that should be celebrated by all:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. 
Obergefell will rightly go down as a seminal decision in American constitutional law. It is one for the ages. As an American, I am proud of our Supreme Court and of our country, for we have come one step closer to “a more perfect Union,” a nation based on tolerance and understanding, and that embraces liberty and justice for all.


  1. Beautifully written and argued, Mark. Thank you for your insight.

  2. Mark,

    With the idea of "negative" rights in mind, [1] the concept that took 10,000 years of human history to achieve and which made the United States the miracle it is, who or what, in this brave new world, will be forced to marry same sex couples? We already know that gay couples have the right to the labor of bakers and photographers, [2] so will non-Lutheran churches be forced to marry gay couples? Are rabbis soon to be in the cross-hairs of the federal government? We know liberals will never go after the mosques and their imams, [3] [4] but what of the Baptists and Catholics? [5] You have regularly referenced the enlightenment of other countries and our need to emulate them, [6] [7] [8] so should our government begin using force against the churches, as in Denmark? [9] A right granted to one person that imposes a duty on another can not be secured without force. Your writing suggests you would support just such force, especially considering that you believe some have a right to a commodity (health care) and others have a duty to provide it. [10] [11] Or will the government make it financially attractive for some to marry same sex couples as they have made it financially attractive to slaughter babies since the discovery of the constitutional right of a mother to murder with impunity? [12] What if all religious organizations refused to participate? Would the government begin punishing them; threatening to remove their tax exempt status as some activists are already advocating? [13] [14] Or would the government strike closer to home, telling judges and other employees that they must now violate their religious beliefs if they desire to keep their government jobs? [15] [16] [17] Will that be the new motto: “Religious need not apply”? By the way, do you have any idea how offensive it is to equate gay marriage with civil rights for blacks? [18] [19] I want a field trip where you and I go to a black Baptist church so you can tell the pastor that every time you think of the government’s prejudice against homosexual marriage, you are reminded of the black man’s struggle for equality. Please! I have to wonder if you ever considered other solutions to the gay marriage issue that respect the rights of all people without imposing duties on anyone. There are classically liberal, now known as conservative, positions that can be taken by anyone passionately curious enough to search for them. [20]

    Rich R.

  3. [1] http://fee.org/freeman/detail/the-perils-of-positive-rights
    [2] http://www.npr.org/2013/12/10/250098572/no-cake-for-you-saying-i-dont-to-same-sex-marriage
    [3] https://www.whitehouse.gov/the-press-office/2012/09/25/remarks-president-un-general-assembly
    [4] http://www.judicialwatch.org/blog/2013/05/doj-social-media-posts-trashing-muslims-may-violate-civil-rights/
    [5] http://www.pewresearch.org/fact-tank/2015/06/26/how-a-supreme-court-decision-for-gay-marriage-would-affect-religious-institutions/
    [6] http://ehlersoneverything.blogspot.com/2012/06/what-we-face-is-above-all-moral-issue.html
    [7] http://ehlersoneverything.blogspot.com/2010/02/eric-holder-american-justice-and-rule.html
    [8] http://ehlersoneverything.blogspot.com/2010/02/time-to-repeal-dont-ask-dont-tell.html
    [9] http://www.telegraph.co.uk/news/worldnews/europe/denmark/9317447/Gay-Danish-couples-win-right-to-marry-in-church.html
    [10] http://ehlersoneverything.blogspot.com/2012/02/matter-of-perspective.html
    [11] http://ehlersoneverything.blogspot.com/2012/06/what-we-face-is-above-all-moral-issue.html
    [12] http://dailysignal.com/2015/06/25/almost-a-third-of-abortions-performed-at-planned-parenthoods/
    [13] http://dailysignal.com/2015/04/28/obama-administration-says-non-profit-status-going-to-be-an-issue-for-religious-schools/
    [14] http://time.com/3939143/nows-the-time-to-end-tax-exemptions-for-religious-institutions/
    [15] http://radio.foxnews.com/toddstarnes/top-stories/exclusive-county-clerk-resigns-instead-of-issuing-gay-marriage-licenses.html
    [16] http://www.cnsnews.com/commentary/dawn-stefanowicz/warning-canada-same-sex-marriage-erodes-fundamental-rights
    [17] http://time.com/3944136/chris-christie-gay-marriage-clerks/
    [18] http://www.blackenterprise.com/news/opinion-what-republicans-could-learn-from-being-gay/
    [19] http://www.breitbart.com/big-government/2015/03/10/black-pastors-coalition-leader-obamas-comparison-of-civil-rights-and-gay-marriage-struggles-a-disgrace-to-the-black-community/
    [20] http://searchengineland.com/guide/how-to-use-google-to-search

  4. Mark,

    I read your essays as soon as they are available with great anticipation, and I'm never disappointed. Your latest, A More Perfect Union, was for me a total winner. While my sentiments were always those of the decision of the majority, your writing gave me an opportunity for greater clarity and understanding in the search for justice in this wonderful country. Your essay inspired me for a 2nd and 3rd reading of it, and even a siding to Wikipedia for any other nugget of this grandiose decision.

  5. Rich – You know I don’t usually venture into the fray here but REALLY -- I thought you would be a better man on this issue. Everything you don’t agree with doesn’t have to set your hair on fire. You must be exhausted being angry all the time. The sky is not always falling. In fact, the sky is never falling. Arguments such as churches losing tax-exempt status or, heaven-forbid, government workers losing jobs that they choose not to perform are “sky-is-falling” arguments which are just silly. First, there will always be churches which gladly embrace and marry same-sex couples. Any church that chooses to exclude same-sex couples so as not to “violate their moral principles” can maintain their narrow cocoon without losing tax-exemption status. Churches have often taken positions contrary to the law of the land and no one has molested their tax status. Second, if I could not sit in judgment of another person who committed a crime because of religious beliefs (beliefs that many people hold), I would have to choose another profession and I could not serve on a jury. If I interpret “thou shalt not kill” narrowly (like the Amish do, for example), I don’t become a cop or soldier and the world doesn’t end. This decision doesn’t force anyone to do anything they don’t chose. If people whose job it is to issue marriage licenses can’t issue marriage licenses without violating their “moral” principles, they have chosen to find another job. Ultimately the choice is entirely in their hands. So it’s not the institutions of government you should fear. It is the verdict of capitalism. Didn’t the first bakery that refused to bake a same-sex wedding cake quickly go out of business? That happened months before this decision. Haven’t you always said that the marketplace is the best arbiter? Let’s see how that works for you.

  6. Okay Andrea, put up your dukes and tell me what you know that Solicitor General Donald B. Verrilli Jr. doesn’t know, since he stated, when asked if a religious college might lose its tax-exempt status if it opposed same-sex marriage, “You know, ­­I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is –it is going to be an issue.”

    Although I never said the sky was falling, I believe this puts the lie to the charge that my concerns are “silly.” And as far as your belief that the sky NEVER falls, I would argue that the 50 million babies crushed to death by chunks of sky since Roe v. Wade provide evidence to the contrary. In a similar vein, I would imagine that millions of slaves once felt the oppressive weight of the sky on their shoulders after the Dred Scott decision. (You are a much better woman than to ever use words like “never” and “silly” so cavalierly.)

    Regarding my anger issues, I have none. I’m a happy warrior who loves being on the side of truth, justice and the American way. This is fun! Especially when the facts are always on my side. For example, your belief that capitalism is being allowed to decide the gay marriage issue is nonsense since the activists have no intention of allowing that to happen. Instead they hire lawyers and use the government as a blunt instrument to beat business owners into submission or out of business. [1] [2] [3] I would love capitalism to decide and I would respect their verdict (that’s how capitalism would work for me). Of course the reason the activists use the courts (and threats of violence too) instead of public opinion is because they know millions of religious Americans and those who simply believe in freedom would support the activists’ targets as they did when over $800,000 was raised for the persecuted owners of a pizza restaurant in Indiana. [4]

    But I do appreciate your support of freedom over government oppression if you really mean it, and I’m sure there were many “liberals,” straight and gay, who donated to the pizza makers because they were offended by the tactics of the homosexual lobby and believed in the right of the business owners to run their businesses in accordance with their beliefs. Sadly though, I do not believe you believe it: “This decision doesn’t force anyone to do anything they don’t chose. If people whose job it is to issue marriage licenses can’t issue marriage licenses without violating their ‘moral’ principles, they have chosen to find another job. Ultimately the choice is entirely in their hands.” How fast the goose-stepping begins! Government invents a new morality and you are quite comfortable with people being forced to look for new employment. “Of course they must quit their jobs, the government has spoken; ‘So it is written, so shall it be.’” Dear God, I hope you’re that compliant when conservatives re-rewrite the rules. But you wouldn’t be, would you? If Congress, the people’s representatives, passed a constitutional amendment saying gay marriage was a matter for the states (and the people) to decide, you would scream foul. You celebrate the decision of a mere nine Americans (actually 5) who in the last month or so have been, according to Mark, either really smart or really stupid, while having little or no faith in the collective wisdom of millions of Americans. I prefer 50 chances to get it right and the freedom of all Americans to vote with their feet, moving to those states that best represent their beliefs.

  7. But freedom is not the real agenda of the activists and that is why they will ignore the gay-friendly churches and businesses and universities and target those who take a stand. If you doubt that the Catholic church or universities like Notre Dame are not on their radar then you haven’t been paying attention to their tactics…or listening to their words. [5]

    This was fun, let’s do it again! We have plenty of time since I see you-know-who has done another baseball post. I have to imagine his Nielsens go way down every time he does that, right?

    Rich R.

    [1] http://abcnews.go.com/US/judge-orders-colorado-bakery-cater-sex-weddings/story?id=21136505
    [2] http://www.foxnews.com/opinion/2014/06/03/baker-forced-to-make-gay-wedding-cakes-undergo-sensitivity-training-after.html
    [3] http://www.salon.com/2013/05/15/yet_another_bakery_refuses_cake_for_gay_wedding/
    [4] http://www.examiner.com/article/memories-pizza-is-back-thanx-to-dana-loesch-and-the-covenant-community-of-christ
    [5] http://www.theblaze.com/stories/2013/04/29/lesbian-activists-surprisingly-candid-speech-gay-marriage-fight-is-a-lie-to-destroy-marriage/