The U.S. Supreme Court has issued its long-awaited decision on same-sex marriage. By a 5-4 vote, it has ruled that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize the validity of same-sex marriages entered into in other states.
I anticipate there will be cries of “judicial activism,” but this decision really is not an example of that. Here’s why.
The Fourteenth Amendment contains two equally important clauses: (1) a guarantee of Due Process before any State may deprive any citizen of liberty; and (2) a guarantee of Equal Protection of the laws for all citizens. The Court’s previous interpretations of these clauses make the outcome in this case inevitable.
The Court long ago decided that the Due Process Clause protects personal choices in matters that are central to individual dignity and autonomy, including choices like whether, when and with whom to start a family. Eisenstadt v. Baird, 405 U. S. 438 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965). More significantly, the Court decided, in Loving v. Virginia, 388 U. S. 1 (1967), that the freedom to choose whom to marry is a fundamental liberty interest protected against state interference by the Due Process Clause of the Fourteenth Amendment.
Loving invalidated a miscegenation statute (a law prohibiting people of different races from marrying.) There is nothing in the Constitution that says only racial minorities enjoy fundamental liberty rights. The Court made that clear twenty years later when it ruled, in Turner v. Safley, 482 U. S. 78 (1987) that the right to marry is so fundamental that States cannot even deny it to convicted criminals who are serving time in prison.
When a State legislates in ways that burden fundamental rights, it should be required to demonstrate some compelling, non-discriminatory justification for doing so. That means it is not enough to simply say, “Homosexuality is bad” or “It’s against most people’s religion.” If constitutional liberty is to mean anything, it must mean that the majority does not get to impose its will on a minority simply because it is the majority.
That it might be possible to come up with some kind of secular justification also is not enough. At one time, States prohibited the issuance of marriage licenses to “deadbeat dads.” As a secular justification, States cited the need to protect women and children from men who are unable to fulfill responsibilities of fatherhood. The Supreme Court struck down these laws, explaining that something more than a rational basis for discrimination impairing a fundamental right is needed to meet Fourteenth Amendment requirements. The state must demonstrate some compelling need, even greater than the need to ensure that children are adequately provided for financially, to justify discrimination impairing a right as fundamental as the right to marry. Zablocki v. Redhail, 434 U. S. 374 (1978).
States have not been able to articulate a compelling, non-discriminatory need to regulate individual choices of marriage partners in this manner. As a result, they can prevail neither against the Due Process Clause nor against the Equal Protection Clause.
That is really all the Court needed to say to explain its decision. The additional language about “the transcendent purposes of marriage,” or the “long history of disapproval of [gay and lesbian] relationships” working “a grave and continuing harm serving to disrespect and subordinate gays and lesbians” really wasn’t necessary. Constitutional rights shouldn’t have to be preceded by a long history of denial in order to become deserving of enforcement.
It also was not necessary for the Court to smear unmarried parents and their children, saying that children of unmarried parents “know” their families are “lesser” than married families, and that being born to unmarried parents “harms and humiliates” children.
As the hue and cry over this decision mounts (the same-sex part, not the part that apparently seeks to re-stigmatize children born out of wedlock), it would serve people well to keep in mind that the Supreme Court’s job is to interpret the Constitution, not to be everybody’s overlord. Declaring that States can no longer deny marriage licenses to gay and lesbian couples does not mean that your church has to perform gay and lesbian marriages. Your church can continue to preach that homosexuality is an abomination if it wishes to.
Properly understood, the decision actually reaffirms your right to choose to marry a person of the opposite sex without governmental interference. It should come as a relief to know that no State can force you to be either homosexual or single.