After reading the case, particularly the dissenting opinions, I decided to go about this week’s forum a little bit differently. I’d like to specifically address the arguments in the dissenting opinions offered by Justices Roberts, Scalia, and Thomas and Alito. I feel compelled to do so because there arguments against the judicial activism and misuse of the Equal Protections clause of the Constitution are not in keeping with precedent.
Justice Roberts, Scalia and Thomas joined in their dissenting opinion on the grounds that “the fundamental right to marry does not include a right to make a state change its definition of marriage” (Roberts, Obergefell v. Hodges, 576 U.S. (2015)). My issue with this statement is that Justice Roberts seems confused about what the term “fundamental right” actually means. I have great respect for the Chief Justice but this was a blatantly biased stance. When a state law is infringing on the fundamental rights of the individual then it is absolutely the place of the court to address and even strike down such a law. There is wide precedent for this.
Justice Roberts also states that the issue at hand is not constitutional because marriage is not addressed in the Constitution. The Constitution as a document does not address many of the questions the court faces, particularly now when we are living in a digital world the likes of which the Founders could not have possibly foreseen. While I understand that the dissenting justices are largely originalist and believe in textualism, I find it hard to fathom that they do so at the exclusion of understanding the need for a broader reading in situations that are oblique.
He also argues that marriage has always been between one man and one woman. But the reality is that while that may be true, and by his own admission, marriage has meant different things. Here in the United States the institution of marriage carries with it certain benefits and obligations that are issued by the state. As the state is not allowed to discriminate on the basis of gender then it stands to reason that marriage, as a state acknowledged institution, should not discriminate against two people based on the gender of one partner.
Justice Scalia argued that as the Supreme Court does not consist of elected individuals that to fundamentally change society based on the whims of nine unelected individuals was wrong. But this is to ignore exactly how much the Supreme Court’s other rulings have impacted our society. Although Scalia voted against it Roberts voted in favor of upholding the provisions of the Affordable Care Act in 2012. Such a massive step towards universal health care is an impactful societal shift. This leads me to believe that the idea of judicial activism, as an accusation, is based largely on where one is standing.
Justice Alito went even more archaic by stating that the purpose of marriage is to further procreation and since gay marriage cannot meet that end then it does not satisfy the State’s interpretation of marriage and therefore a state should not be required to recognize gay marriage if that state chooses not to. So I would suppose by this definition infertile people should not be allowed to marry either. Further, states do not grant special benefits and protections to married couples for the sole purpose of benefitting their potential offspring.
The majority ruled correctly in this case and it is in keeping with the idea of Equal Protection. Not in a vague way, but in a very real and provable way. That equal marriage rights is now the law of the land has done little one way or another to impact the institution of marriage as a whole. I believe, five years removed from the ruling, that it was the right call.