A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.
Today’s decision (PDF) by the U.S. Supreme Court in Obergefell v. Hodges settles same sex marriage as a legal issue. From the syllabus (pages 4–5):
The right to marry is a fundamental right inherent in the liberty of the person, 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. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
There will be calls for a constitution amendment overturning the decision, and zealots and demagogues will urge massive resistance of the type conducted by the South after Brown v. Board of Education, but the decision will stand and the initial resistance will fade, very slowly, into grudging acceptance.
The decision was 5–4, with Justice Kennedy writing the opinion. There were several dissents, but Chief Justice Roberts’ was the most interesting — and interestingly, he did not join any of the other dissents. Roberts believes the political system was moving toward full legalization of same sex marriage, and that the political process should have been allowed to run its course:
When decisions are reached through democratic means,some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are — in the tradition of our political culture — reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting).
But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving…, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs. [Decision, pages 26–27.]
Although Obergefell settles same sex marriage as a civil matter, it has no bearing on marriage as a religious issue. Americans are free to believe what they will; some deeply religious American will continue to believe that same sex marriage is a sin that cannot be forgiven and should not be permitted. Agitation for a constitutional amendment overturning Obergefell begins now, and fire and brimstone sermons denouncing same sex marriage and supporting an amendment will shake the rafters in more than a few churches. Those taking that approach are within their rights even if some think they’re out of their minds.
Defiant preachers don’t concern me.
Defiant politicians do. Mike Huckabee issued a statement reminiscent of a southern governor’s reaction to Brown. Fortunately, he’s no longer a governor, so he’s in no position to prevent Arkansas from issuing certificates of marriage to same sex couples. And he’ll never become President. The politicians to watch are those in office, such as Sen. Steve Daines and county clerk and recorders, and those with a reasonable chance of being elected to office, such as Greg Gianforte.
I hope Obergefell puts the same sex marriage issue to rest so that the campaign of 2016 can focus on health care, energy, jobs, fair wages, and other issues that affect Joe and Jill Citizen. That’s my hope. It’s not my expectation.
Here are Lorrie Morgan and Josh Turner singing Golden Ring, with Turner hitting some remarkably flat and sour notes. Tammy Wynette and George Jones made the song famous, but the owner of the rights to their performance forbids embedding the video in web pages. But you can watch it on YouTube, and probably should as a antidote to the Morgan-Turner performance. Besides, you’ve got to see Wynette’s costume.