The Supreme Court's brave new rights

By a vote of 5-4, the U.S. Supreme Court on Friday granted a new constitutional right: The right of same-sex couples to receive marriage licenses nationwide regardless of state law. The parties before the court, in the words of the majority justices, sought fulfillment, rescue from lives of loneliness, and equal dignity.

The dissenting justices were equally grave in denouncing the court’s decree, characterizing it as lawless, laughable, and a threat to the freedom of dissenters.

The structural flow of the majority opinion went like this: Marriage is a fundamental right. Because same sex households are like opposite-sex households in desiring privacy, personal choice, and safeguarding of children, that fundamental right to marry exists no matter the genders of the two people involved.

But that method of legal reasoning departed from all previous analysis to find a new right that has never existed.

During oral arguments, Justice Anthony Kennedy stated what he thinks is the purpose of marriage: “I thought the whole purpose was to bestow dignity.”

Dignity is not a constitutional or legal concept. But Kennedy wrote in the majority opinion, “There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”

The majority opinion explores the history of marriage as one of both continuity and change.

“Marriage today is not what it was. Marriage was a relationship between a dominant male to a subordinate female,” Justice Ruth Bader Ginsburg said. “Should that be a rule a state should be able to make? Cling to marriage the way it once was?”

The opinion echoed Ginsburg’s views in stating, “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

The court explicitly overruled the 1972 case Baker v. Nelson, which held marriage matters are exclusively the province of the states, not the federal government. In part, that foundational ruling provided some legal ammunition to knock down the federal Defense of Marriage Act two years ago. In that decision, Windsor v. United States, the same majority held that domestic-relations regulation, including marriage, belongs to the states. As of Friday, that’s no longer the case.

The opinion found “new insight” about the legal concept of due process that must stretch the definition of marriage to include same-sex unions. Homosexuality is no longer considered wrong, let alone a mental illness, as the psychology profession once saw it.

As expected, the majority used the interracial marriage case, Loving v. Virginia, to anchor its opinion. Though that case presumed opposite sex partners, the majority said other precedents such as those striking down sodomy laws loosened traditional understanding of sexual relations.

Therefore, the “fundamental right” is based on the extra-constitutional concept of dignity; upon dismissing history and tradition, the normal tools of legal analysis; and upon the personal tastes of the majority justices.

No one, including the four dissenters, disputed the compelling circumstances of same-sex couples who want the same legal benefits and obligations of marriage. “The majority’s driving themes are that marriage is desirable, and petitioners desire it. But constitutional law does not consider the sincerity of petitioner’s wishes,” Chief Justice John Roberts wrote.

The four dissenting opinions were somber and urgent in tone. Each decried the usurpation of the democratic process, shutting down debate and ensuring an entrenched battle for years to come.

“A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” Justice Antonin Scalia wrote. He criticized the majority opinion as “straining to be memorable,” saying his colleagues relied on a style as “pretentious as its content is egotistic.”

He excoriated the court’s use of terms like “spirituality” and “intimacy” as freedoms, yet undefined and unmentioned in our founding documents. No matter what the people ratify, he said, the court can now trump them, he warned.

And Scalia underscored the lack of diversity on the bench—no Protestants, no Southerners, only one Midwesterner, all educated at Harvard, Yale, or Columbia.

“Hardly a cross-section of America,” he wrote, which would be irrelevant if the justices were functioning as judges instead of as super-legislators, Scalia wrote.

Justice Clarence Thomas noted the “dignity” the court believes it bestows comes only from God. Did slaves lose their dignity because the government allowed them to be enslaved, he asked? No. Because government cannot bestow dignity, it also cannot take it away.

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