By Walter Beck
This article is dedicated to Brother Tom Morgan and Bryon Fear
I was at work; on my first smoke break of the day, a lit Marlboro hanging from my lip and a Stephen King novel open in my hands when I felt my phone buzz. I looked down at the text message. It was from my lawyer buddy Todd, he said “WE WON—MARRIAGE EQUALITY REQUIRED FOR ALL 50 STATES!” It was 10:02 AM on June 26th.
In a 5-4 ruling, the Supreme Court found in Obergefell v. Hodges that all states must recognize the legitimacy of marriage equality. Writing for the majority, Justice Kennedy said,
“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.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.”
The majority opinion of the Court found that denying the right of gay and lesbian couples to marry violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.” In terms of marriage and the Fourteenth Amendment, the majority wrote;
“Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying.”
But the most beautiful part of the majority opinion rested in its views of the concept of “traditional marriage”; the Court recognized that throughout history, the definition and meaning of marriage has changed, even in the United States. Justice Kennedy wrote in the opinion,
“The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.”
Continuing, “These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”
That is the biggest blow to our opponents; the undeniable fact that marriage has grown, changed, and ultimately evolved as society does the same. And as the majority opinion points out, those changes have not lead to the complete dissolution of marriage within a society; rather they have added the bonds of many new couples, strengthening the institution.
Of course, being that this was not a unanimous ruling by the Court, the Justices who dissented had their opportunity to present their views as well.
Chief Justice Roberts, along with Justice Scalia and Justice Thomas, writes that fundamentally there is no Constitutional question at stake here. The United States Constitution does not address the issue of marriage equality and the question of it is beyond the Court’s authority,
“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
With all due respect to the Chief Justice of the Supreme Court, that is 100% bullshit. Now, does the Constitution specifically address the issue of marriage in and of itself? No, it does not. But, the Equal Protection Clause of the 14th Amendment was cited in the famous case Loving v. Virginia, which overturned the ban on interracial marriage in the US. And furthermore, writing for the majority in this case, Justice Kennedy cited the Loving case as precedent for where the Constitution has authority on questions of marriage.
Surely the Chief Justice knows that the Supreme Court looks to how they’ve ruled on previous cases for directives on how to apply the Constitution to a case in question.
The most damning dissent came from the Court’s most conservative member when it comes to the concept of LGBT rights, Justice Scalia. Like his fellow dissenters, Scalia sees the ruling as a dangerous overstep of judicial power. But rather than at least extending a bit of a congratulations to the happy couples, as his fellow dissenters did, Scalia goes straight for old school paranoia, intoning with doom;
“It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Furthermore, Scalia insults the integrity of the majority of the Court, accusing them of arrogance, closing his dissent with, “Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the ‘least dangerous’ of the federal branches because it has ‘neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm’ and the States, ‘even for the efficacy of its judgments.’ With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Scalia has moved from the realm of simple conservative crankiness and straight on to the highway of pure tin-foil hat Alex Jones-style paranoia, echoing the worst of the crazy right with intonations of “judicial tyranny!” To me, that smells like a big fat case of “sore loser” on Scalia’s end. He is no fan of queer folks and when he cries and whines about the “voice of the people”, he’s only crying and whining because his side lost.
Regarding that whole “voice of the people” argument that the dissenting Justices made (they all made at least a courtesy note of it), what is the line? For example, the Supreme Court in the 1950’s struck down this country’s segregation laws, yet many of those laws were enacted by the “voice of the people”, either through popular vote or a state legislature. Would Scalia dare say that the “voice of the people” was ignored by an unelected court in that case? What about Roberts? Would he point to the lack of the Constitution’s mention of segregation laws as a reason to thumb his nose at those who wanted equal treatment?
I would like to say no, but since they’re trying to appease a conservative crowd, who the hell knows?
It boils down like this; yes, we have a democratically-based government where the votes of the people or the votes of their duly elected legislature matters, but you cannot put the rights of a minority to the votes of the people or the legislature. That is the very point of our Constitution, to guarantee rights for all citizens of this nation, be they in the majority or not.
Outside of the realm of the Supreme Court with both the majority striking down laws barring marriage equality and the dissenters tearing their legal hairs out over questions of judicial restraint, the views of the people were just as divided.
Of course the most important view is that of Jim Obergefell, the named plaintiff in this case. Jim’s husband Arthur died of ALS in 2013 and Jim was not recognized as his legal spouse on the death certificate in their home state of Ohio. Speaking to Katie Couric about his feelings when the majority of the Court ruled on marriage equality, Jim said, “It was an incredible experience to hear a Supreme Court justice talk about how my marriage, my relationship, how John and I matter. How we deserve respect and dignity and I started to feel a lot more like a full, equal American at that moment.”
Not everybody out there felt such love and dignity over the opinion. In the Deep South, there is rumors of side-stepping the Court’s ruling, with officials in Mississippi debating on whether or not they should stop issuing marriage licenses all together rather than having to issue them to gay and lesbian couples. In Louisiana, Governor Bobby Jindal said that until the Fifth Circuit Court issues their decision regarding marriage equality, he is not bound by the Supreme Court to recognize it in his state.
In both Mississippi and Louisiana, the officials cited “religious liberty” as their main reason to tell the Supreme Court to go fuck themselves, as did former Arkansas Governor Mike Huckabee, who earlier this week said, “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.”
The angry, desperate voices of these southern lawmakers reminds me of the same desperate anger that southerners had during the Civil Rights Movement of the 50’s and 60’s where governors and state legislatures insisted that their Bible-based views of segregation were beyond the reach of even the highest court in the land.
Note to Huckabee, Jindal, and Mississippi governor Phil Bryant, the southerners lost that argument too and you will ultimately lose this one.
Well brothers and sisters, this ultimately marks the end of one long and often ugly battle. We’ve gone from one state having marriage equality (Massachusetts, 2004) to now by the gavel of the Supreme Court having it all across America. Sure, some of our opponents are gonna stomp their feet and cry and whine to their constituents and sponsors, but they will lose. June 26th, 2015 was our day; two years to the date after Winsdor v. United States struck down part of the Federal Defense of Marriage Act (DOMA), we have done it, we have won this fight.
So tonight, break out a bottle of your favorite champagne and celebrate with a drink or two or three or another bottle. I have a magnum of my favorite, Barefoot Bubby Pink Moscato, chilling on ice next to my desk and as soon as this gibberish is finished, I’m gonna pop the cork and drink very deeply. We have more battles ahead of us, no doubt, but this is a time to celebrate, we have all earned it.
Speaking of champagne, I have one last thing to do before I close out this business, I need to go down to Walgreen’s and get a bottle of Cook’s Extra Dry California Champagne and send it to Brian Brown of the National Organization for Marriage (NOM) with a note attached that reads “Well you lost. Good luck on finding a new job, you bastard.”