Sunday, June 28, 2015

Love Won, Because It Was Time

The decision is reminiscent of the "penumbras, formed by emanations" reasoning employed by Justice William Douglas in Griswold v. Connecticut, which eventually made the constitutionally unprincipled ruling in Roe v. Wade possible.

- Ken Connelly, opinion piece published on

Since the Supreme Court's ruling in Obergefell v. Hodges was announced on Friday, June 26, a certain portion of the conservative commentariat has gone earnestly ape-shit over it. Connelly's position should be obvious given his drive-by reference to Roe v. Wade, another conservative jurisprudence shibboleth, and I doubt anyone would be surprised that he contributed friend-of-the-court briefs in both Obergefell and United States v. Windsor, the ruling that served as precedent and struck down the definition of marriage in the federal Defense of Marriage Act as unconstitutional, both on the side seeking to maintain the status quo.

Those points in themselves, though, are not sufficient to dismiss Connelly's point, despite the tone of his argument approaching what a much-younger friend described as 'butt-hurt'. The argument that Connelly makes for "Why [the] Supreme Court got it wrong" (the title of his essay), basically boils down to this passage:

[T]he court in Obergefell v. Hodges ignored history, the text and meaning of the Constitution, and prior Supreme Court jurisprudence to justify its holding that the 14th Amendment mandates the recognition of same-sex marriage.

The problem with Connelly's argument, and the reason it can ultimately be dismissed, is that he doesn't actually back up his thesis with credible evidence, and the little he does provide is easily disproved by examining the decision itself.

For instance, with respect to history, Connelly notes that when the Court struck down Texas's sodomy laws in Lawrence v. Texas, it cited that "national laws and traditions" (to use Connelly's words) were evidence of "an emerging awareness" (to use the Court's words in Lawrence) that private decisions on sexuality were part of the 14th Amendment's protections. Likewise, Connelly points out that in Roper v. Simmons, a decision that found that assigning the death penalty for juvenile offenders was unconstitutional, the Court cited both a "national consensus" and the "overwhelming weight of international opinion" to help justify its decision.

Connelly complains that such consensus is not cited here because it does not exist -- he goes on to claim that only 21 of the 193 members of the United Nations have legalized some form of marriage for same-gender partners, and that only one international court has judicially imposed the practice as being in concert with that nation's own constitution. The problem with this is that Connelly is engaging in a bit of selective framing: of the vast majority of U.N. members that have not yet legalized marriage for same-gender partners, those nations are overwhelmingly 'third-world' nations; of the U.S.'s peer nations, the majority have recognized such a right and have enumerated it. Canada did so ten years ago, as an example, and Ireland recently did so in one of the most popular plebiscites in its history. Even Spain and France, cited by Connelly as nations who've had judicial decisions upholding opposite-gender marriage, have legalized marriage for same-gender couples through legislation: France did so in 2013 while Spain did so in 2005.

Connelly does a similar re-framing tap-dance when he notes that "[o]nly 11 states, acting either through their people directly or through their elected legislators, have chosen to redefine marriage," by pointing out that the many other states where marriage is allowed to same-gender couples were "thwarted -- by state or federal courts -- in their attempt to retain marriage as it has always and everywhere been defined." In every case, the 26 states where courts made a judicial ruling allowing marriage for same-gender couples did so based on the same reasoning used by the Supreme Court -- the state constitutions, containing equal protection clauses equivalent to that of the 14th Amendment, provided for equal treatment of same-gender and opposite-gender couples with respect to marriage. One could just as easily make the rhetorical point that "only 13 states continue to ignore that their state constitutions will not tolerate the different treatment of same-gender and opposite-gender couples with respect to marriage" and be just as grounded in fact. The reality is that, if there is momentum, it is in a direction favorable to marriage for same-sex couples: prior to 2012, bans on marriage for same-gender couples had never been defeated in state-wide elections, until the voters of Minnesota defeated such an amendment in November of that year. Minnesota eventually passed a law explicitly allowing marriage for same-gender couples, but it was not the first state to do that: Delaware and Rhode Island had done so by legislative action earlier in the year, while Maine, Maryland, and Washington state incorporated explicit approval in their state constitutions as part of popular plebiscites the prior November.

The idea that allowing marriage for same-gender couples is some kind of hasty, un-analyzed option was directly addressed in the majority opinion in Obergefell, specifically in Part IV of the opinion. The opinion basically demolishes the argument from both sides: on one, the opinion notes that:

[T]here has been far more deliberation than this argument [in favor of waiting for legislative action and greater public approval] acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life -- state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities -- have devoted substantial attention to the question. This has led to an enhanced understanding of the issue -- an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.

As an example, Appendix A, referenced in the quote above, is more than five full pages of references to court decisions and legislation related to the discussion of marriage rights for same-gender couples, and while many of those references are recent, they also include citations as far back as Baker v. Nelson from 1971. So, no, the discussion regarding marriage for same-gender couples is not in its infancy in any way -- it's been going on for decades and is reaching its maturity as this Court is making its deliberations. But even so:

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." ... This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." ... It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.

I bolded the most significant point for emphasis; even though the opinion does demonstrate that the argument had advanced much farther than opponents want to admit, that very argument is irrelevant when the question is one of fundamental rights and relates to the Constitution. Game, set, and match.

We could move on to address Connelly's points regarding previous Court decisions and the Constitution itself, except that Connelly makes no such arguments in his essay: the closest he comes is to cite Lincoln's Gettysburg Address and claim that a Supreme Court decision isn't reflective of a government of "the people".

I'd provide the counterarguments for Connelly's assertion myself, but I don't have to -- Justice Anthony Kennedy has done remarkably well in the majority opinion, so you can read it there if you like.

Instead, I'll make a point that I feel is significant in the evolution of this discussion regarding marriage for same-gender couples, and it relates to my using that specific phrase instead of 'same-sex marriage' in my own essay. The people who were always highly motivated to see marriage between same-gender couples as wrong, I believe, was always a minority and a fairly small one at that. What they lacked in numbers was made up for by the advantage of rhetoric -- they were able to put their objections into a form that people who didn't feel strongly about the issue found persuasive. The phrase 'same-sex marriage' was part of that rhetoric -- it suggested that same-gender couples were looking to twist the classical definition of marriage by trying to sneak in a special right to it. While they had no evidence that 'same-sex marriage' would harm children and lead to the weakening of more traditional marriages, their rhetoric was persuasive to many when the only counter-argument was 'no, that's silly'.

But as time passed, and many of the argued dangers of 'same-sex marriage' were exposed as the pieces of frightening yet empty rhetoric that they were, so, too, did public tolerance of that rhetoric change. People began to realize that there was no 'same-sex' or 'opposite-sex' marriage, just as, for an earlier generation, there was no 'same-race' and 'mixed-race' marriage; there was just marriage, and that denying people the chance to pursue their happiness in marriage to someone they love wasn't really a thing they wanted to do. This was a huge win for the advocates of marriage equality; a time where raising awareness was exactly the needed tonic for the national disease of bad arguments. Today, the tired old arguments that keep getting trotted out by opponents of marriage equality (it'll lead to polygamy! to bestiality! to consanguinity!) are being more and more frequently ignored, not because people stopped agreeing with the argument, but because they finally became aware that they never agreed with the argument in the first place.

Marriage for anyone who feels strongly enough to take on the challenge is an idea whose time has finally come. Congratulations to all of us.

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