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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 40: 2015-JUN-26:
Disagreements among the High Court Justices:
Justice Scalia's minority opinion (Cont'd) .
Looking back at historical redefinitions of marriage.
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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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gavelExcerpts from Justice Scalia's minority opinion (Cont'd):

  • Because of this ruling in Obergefell, the United States is no longer a democracy:

    "A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. ... 6

    "The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation." 7

    Webmaster's comment: [bias alert]:

    Justice Scalia states that the Obergefell ruling proscribes "the traditional definition of marriage." This appears to me to be incorrect. The traditional definition of marriage has been one woman marrying one man. Such marriages are not proscribed (forbidden, prohibited, banned, barred, interdicted) by the High Court's ruling. A woman and man can still choose to marry, obtain a marriage license, and marry, just like before. The sole effect of the Obergefell ruling is to extend this activity to same-sex couples whose marriages were previously proscribed. The ruling is a win for democracy, a lessening of discrimination, and a win for same-sex couples.

    If Justice Scalia's argument had any merit then the U.S. would have stopped being a democracy in 1954 when the nine Justices of the U.S. Supreme Court issued its ruling in Brown v. Board of Education of Topeka. That decision was intended to eliminate the tradition of racial segregation in (mostly) Southern public schools.

    If by some miracle American democracy survived "Brown" then it would have ended in 1967 when the Supreme Court issued its ruling in Loving v. Virginia when it legalized interracial marriage across the country against the traditions of over a dozen states. During 2003, there was the High Court's decision in Lawrence v. Texas that decriminalized consensual same-gender sexual activity between adults in private, against the tradition of a similar number of states which considered such activity a criminal act.

    The United States is a Constitutional Democracy. This means that some rights are guaranteed by the federal Constitution. But the meaning and scope of that document, including its 14th Amendment, has to be interpreted. The principle of having nine senior jurists deciding on the constitutionality of federal laws, state laws, and constitutional amendments has lasted as long as the country itself.

  • The five Justices who found a constitutional right for gay marriage think that they are smarter than centuries of legal scholars:

    "They have discovered in the Fourteenth Amendment a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds — minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly — could not." 7

    Webmaster's comment: [bias alert]:

    The American culture changes. Each generation builds upon the accomplishments, and knowledge generated by previous generations. Specialists in the physical and social sciences often talk about "standing on the shoulders of those who have gone before." The drive to legalize gay marriages had many prerequisites that had to be satisfied before the topic was seriously considered in the United States:

    • It was only during the early 1950's that Psychologist Evelyn Hooker conducted the first ever meaningful research into sexual orientation. She interviewed gays, lesbians, and bisexuals as they functioned in society. Previous studies had been made on patients of psychiatrists, or inmates of penitentaries.

    • It was only in 1973 that the American Psychiatric Association recognized for the first time that homosexual orientation is not a mental disease.

    • It was only more recently that human sexuality researchers found that a homosexual or bisexual orientation is normal, natural, and fixed for a minority of adult humans -- and for that matter, for a minority of all other mammalian species.

    • It was only after 2003, with the U.S. Supreme Court's decision in Lawrence v. Texas, that same-gender sexual behavior was decriminalized everywhere in the U.S.

    • It was only in 1991 when three Hawaiian same-sex couples became the first Americans who -- unsuccessfully -- attempted to marry. This raised the profile of gay marriage to the point where significant numbers of Americans started to seriously consider it.

    • It was only in 2001 when Holland became the first country in the world to legalize gay marriages.

    • It was only in 2003 when Ontario, Canada became the first political jurisdiction in North America to legalize gay marriages.

    • It was only in 2004, Massachusetts became the first state to legalize gay marriages.

    • Finally, it was in 2013 that the U.S. Supreme Court found in Windsor v. United States that Section 3 of the federal Defense of Marriage Act was unconstitutional. Their ruling required that the federal government recognize gay marriages in those states where they were legally solemnized and registered. That, in turn, required the federal government to extend to legally married same-sex couples access to 1.138 federal programs, benefits and protections on the same basis as opposite-sex couples. The majority opinion in that case was also written by Justice Kennedy and opposed by Justice Scalia. The High Court's majority opinion in that case used reasoning that was subsequently picked up by many dozens of state and federal judges who legalized gay marriage state by state over the following two years.

    Also worth mentioning is that a large number of judges -- probably in excess of 100 -- in state courts, federal district courts, U.S. Circuit Courts of Appeals, and now finally the U.S. Supreme Court have considered gay marriage during the previous two years. With only a handful of exceptions, they found that the Due Process and/or Equal Protection clauses of the 14th Amendment of the U.S. Constitution require that same-sex couples be able to marry. The five Justices on the U.S. Supreme Court were following the path created by more than 100 fellow jurists, and the opinion of about 60% of American adults, a number that has been rising for decades and is expected to continue increasing.

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Looking back upon past marriage redefinitions in the U.S. from the perspective of history:

  1. At the conclusion of the civil war in the mid 1960's (a.k.a. the War Between the States and the War of Northern Agression) slaves were freed from slavey and able to freely choose to marry persons that they loved for the first time. Previously, they were considered property and could only marry with he approval of their owners.

  2. In the early 20th century, a few states that had banned profoundly deaf couples from marrying repealed their laws and attained marriage equality for such couples.

  3. A half century ago, In 1967, the U.S. Supreme Court issued their ruling in Loving v. Virginia. It repealed all of the anti-miscegenation laws in 16 contiguous states which form the southeast quadrant of the United States, from Virginia to Texas to Florida. This legalized interracial marriage across the country. At the time, about 72% of American adults were opposed to interracial marriage and 48% felt that marrying a person of another race should be prosecuted as a criminal act. IMHO, this was a brave act by the Court.

  4. Now, on 2015-JUN-26, the U.S. Supreme Court issued their ruling in Obergefell v, Hodges. It repealed all of the gay marriage bans in 13 states in the South and Mid-west, and in four territories in the Pacific and Atlantic Oceans. This legalized gay marriage across the country. At the time, about 35% of American adults were still opposed to same-sex marriage. This number has been in decline for decades; this trend is expected to continue.

There was heavy opposition to these changes at the time. However, today, a half-century or more has passed, and the first three are almost universally regarded as beneficial changes to the definition marriage and to the wellbeing of Americans. Only time will tell whether the fourth change to the definition of marriage will receive the same level of support.

A few weeks after the High Courts ruling in Obergefell, the tenth anniversary of the legalization of gay marriage in Canada will occurr. Canadians are now overwhelmingly in favor of marriage equality to the point where the terms "same-sex marriage" and "gay marriage" are essentially defunct. Mariages by same-sex couples have been routine for a decade, and are referred to simply as "marriages."

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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 10 of section titled "Roberts, C.J., dissenting," at: http://www.supremecourt.gov/
  2. Ibid, Page 5.
  3. Charles C. Camosy, "Does the Catholic Church support the use of a surrogate mother to have a child?," Busted Halo, 2012, at: http://bustedhalo.com/
  4. Op Cit, "Supreme Court." Page 6 and 7.
  5. Op Cit, "Supreme Court." Page 6 of section titled "Scalia J., dissenting"
  6. Ibid Page 5
  7. Ibid Page 6

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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-05
Author: B.A. Robinson
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