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Religious Tolerance logo

The U.S. Supreme Court legalized same-sex marriage (aka gay marriage)
across the U.S. in its ruling of The Obergefell v. Hodges case from
Kentucky, Michigan, Ohio, & Tennessee.

Part 38: 2015-JUNE-26:
Disagreements among the High Court Justices:
Conflicts between Justice Kennedy's majority
opinion, & Chief Justice Roberts' minority opinion.
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We use the term "gay marriage."to represent the marriage of two persons of
the same sex. We prefer "Same-sex marriage," a more inclusive term that
includes spouses with a bisexual sexual orientation, but it would make this web
site harder to find.
"LGBT" refers to lesbians, gays, bisexuals, transgender persons and transsexuals.
"LGB" refers to lesbians, gays, and bisexuals.

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This topic is continued from the previous essay

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gavelStatements by Justice Kennedy:

The opinion that he prepared was written for, and agreed to, by the majority of Justices on the High Court. They determined that access to gay marriage by same-sex couples is a fundamental right guaranteed by the U.S. Constitution. The following are short excerpts from Justice Kennedy's opinion:

  • An excerpt about marriage itself:

    "From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations." 1

  • A short excerpt on how the Due Process clause of the 14th Amendment of the U.S. Constitution applies to gay marriage:

    "The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs." 2

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  • How the proper interpretation and scope of the U.S. Constitution evolves over time and a new civil right, like the right of a same-sex couple to marry, emerges from the Bill of Rights and the 14th Amendment:

    "The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed." 3

  • How courts have the responsibility of protecting human rights, even when the public, state legislatures, and Congress disagree or delay change:

    "Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. ... The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution 'was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts'." 4

    [Emphasis was not in the original]

Webmaster's comment:

There is a very widespread belief among some religious, social, and political conservatives that the United States is a pure democracy. They believe that whenever voters in a state, territory or district amend their constitution, that this automatically becomes the law in that location, even if it violates the federal Constitution.

Outside of this small group, the consensus is that the United States is a constitutional democracy in which courts can determine whenever state/territorial/district laws and constitutional amendments violate the federal constitution. Further, they can declare them to be unconstitutional and unenforceable. In fact, this becomes one of the main -- if not the most important -- function of the U.S. Supreme Court.

There needs to be dialogue between these two groups in order to resolve this conflict. Unfortunately, none appears to be taking place.

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Excerpts from Chief Justice John Roberts' dissenting opinion.

It rejects the assertion by the majority of Justices on the High Court that the U.S. Constitution guarantees the right of same-sex couples to marry:

Justices Antonin Scalia and Clarence Thomas concurred with this opinion by the Chief Justice.

Chief Justice Roberts wrote:

  • About the court system lacking the authority to legalize gay marriage. Judges cannot "legislate from the bench:"

    "... 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.' The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). ..." 5

  • About the majority opinion being "deeply disheartening:"

    "Today ... the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration." 

    "But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens --- through the democratic process -- to adopt their view. That ends today. Five lawyers 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.".5

  • About the majority opinion not being grounded in the Constitution or in previous Court decisions:

    "The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial 'caution' and omits even a pretense of humility, openly relying on its desire to remake society according to its own 'new insight' into the 'nature of injustice.' ... As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?" 6

Chief Justice Roberts reference to "invalidates the marriage laws" statement appears to be referring to Amendments to the state Constitutions of over 30 states that a majority of voters had passed to ban gay marriage.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Supreme Court of the United States: Obergefell et al. v. Hodges..." Supreme Court, 2015-APR-26, Page 5 of section titled "The Opinion of the Court," at:
  2. Ibid, Page 10.
  3. Ibid, Page 11.
  4. Ibid, Page 24.
  5. Ibid, Page 2 in the next section titled "Roberts, C.J., dissenting."
  6. Ibid, Page 3.
  7. Ibid, Page 10.


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How you may have arrived here:

Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-JUN-27
Latest update: 2015-JUL-04
Author: B.A. Robinson
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