Obergefell v. Hodges: A belated response

I began writing some of the following a couple of days after the Obergefell vs Hodges Supreme Court Case. Since then I’ve added to those initial thoughts and also taken some away. The issue may seem a little moot at this point, but I still feel that it is important to me to articulate and share some of my thoughts and feelings.

On June 26, 2015 the Supreme Court decided in a 5-4 vote to redefine marriage as the union between any two persons, regardless of gender.

I think it was a dumb decision.

As I understand it, the opinion of the majority involved the Equal Protection and Due Process clauses of the 14th amendment. This clause states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Justice Kennedy argued that denying homosexuals the right to marry was a violation of this amendment. Technically speaking, gays and lesbians had the right to marry. Marriage was recognized as being between a man and a woman. Gays and lesbians were never being denied that opportunity in any state.

Second of all, who gave the Supreme Court the right to make new laws? If I remember my history and government classes right, isn’t that what the legislative and executive branches are supposed to do? Not the judicial branch? In Chief Justice Robert’s dissenting opinion he focuses on the fact that it is not in the Court’s jurisdiction to even make this decision. Not to mention the fact that the Supreme Court pretty much faced the same quandary in the 1972 case Baker v. Nelson and ruled (in one sentence) that since the question of same sex marriage is never addressed in the Constitution they had no authority to make a decision. They can interpret what the laws say and mean, but to redefine those words that are in the laws of the land as established by elected individuals is another matter entirely. The whole point of belonging to a democratic republic is so that we the people can decide what laws we will abide by. If all the judges in the land could now write laws then anybody with a strong opinion could find a judge who agreed with them and make whatever laws they wanted. “No taxation without representation” is equivalent to “how about the people we elect to make laws are the ones who make the laws.”

Some individuals may argue that it isn’t right for a religious majority to impose their beliefs and standards on others. By that argument it wasn’t right for Congress to pass the 13th Amendment. Isn’t that what living in a Democracy means: that sometimes one opinion wins and everyone who disagrees has to learn to live with it? Have you heard the term Majority Rule? It stems from the idea that the majority of people will exercise common sense in directing the group toward the best decision. What ties us all together is the great process by which we make law. More and more it seems that individuals who aren’t getting their way take short cuts to get what they want.

But wait; don’t people still have a right to the pursuit of happiness? That’s what Jefferson wrote. What else did he write in that great declaration?

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

There are two phrases that stand out to me that qualify that first, simple and powerful statement. The first: “…it is the Right of the People to…institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Securing our safety and happiness is the sole purpose of good government. I would argue that it is not the government’s job to make us happy, but to provide an equal opportunity for all to pursue happiness, as stated earlier. I think most would agree. How does the government keep us safe and what from? Not only is it the responsibility of the government to keep us physically safe, but also provide for the safety of those rights explicitly declared for in the Bill of Rights.

The last sentence is also instructive: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes…” If government should not be changed for light and transient causes, then why is it ok for the very bedrock of human society to be changed at the whim of five judges?

These two phrases in the Declaration of Independence hearken to a simple decision-making principle: Do the benefits of a decision outweigh any harmful results? This means looking at the consequences of all decisions available and determining which one is best accordingly. Will that be the case with the ruling of Obergefell v. Hodges?

Well, unfortunately we don’t have a lot of data. This is a social experiment we are undertaking and there’s really no way to tell what the results will be. On the plus side, individuals who are homosexual will be able to be joined in the bonds of marriage and be accorded all the privileges that go along with that. At least those provided by the government. In addition there is some evidence that it may benefit the economy because weddings cost money. So that would be good. On the other hand, areas where gay marriage has been legalized have experienced a loss in freedom of speech and a loss in religious liberty. Here are some examples:

  • After Massachusetts redefined marriage to include same-sex relationships, Catholic Charities of Boston was forced to discontinue its adoption services rather than place children with same-sex couples against its principles.
  • Massachusetts public schools began teaching grade-school students about same-sex marriage, defending their decision because they are “committed to teaching about the world they live in, and in Massachusetts same-sex marriage is legal.” A Massachusetts appellate court ruled that parents have no right to exempt their children from these classes.
  • The New Mexico Human Rights Commission prosecuted a photographer for declining to photograph a same-sex “commitment ceremony.”
  • Doctors in California were successfully sued for declining to perform an artificial insemination on a woman in a same-sex relationship.
  • Owners of a bed and breakfast in Illinois who declined to rent their facility for a same-sex civil union ceremony and reception were sued for violating the state nondiscrimination law.
  • A Georgia counselor was fired after she referred someone in a same-sex relationship to another counselor. (Ryan T. Anderson, “Marriage: What It Is, Why It Matters, and the Consequences of Redefining It.” 2011)

In addition, here are some other specific examples of negative things that have happened to good people for exercising their freedom of speech.

  • Brendan Eich, CEO and founder of Mozilla, was forced to resign his position.
  • Angie’s List left Indiana after it tried to pass a Religious Freedom Restoration Act, taking jobs away from communities there.
  • Peter Vidmar was forced off of the U.S. Olympic Committee despite his number of gold medals.
  • Orson Scott Card was de-invited from writing a comic book for DC and people boycotted the film of his award-winning book.

I would consider some of the above examples as instances where the government failed to perform its duty to “effect [the] Safety and Happiness” of the people by stripping them of basic rights as outlined in the Bill of Rights. Indeed, it kind of did the opposite.

One final thought. I have heard from peers, celebrities, and textbooks that since it’s a proven fact that homosexuals have always been around that somehow it makes it OK and natural for them to start getting married. “Evolution has spoken! The Law of Nature is on our side!” That’s what they seem to be saying. In regards to this evolution argument though there is a fatal flaw. At least in the textbooks I have read there is no evidence presented that ancient homosexuals ever formed their own family units. What they do speculate is that these individuals served as important adult figures in rearing their nieces, nephews, or other children in the community. That’s the supposed evolutionary reason being given to why individuals may have these feelings. I understand this as a good argument against discriminating against homosexuals or transgender individuals. It is a matter of biology that these things exist. I agree with this premise, that since homosexuality is part of nature it is not “freaky” and so we shouldn’t discriminate against them or treat those who have these feelings any differently. But evolutionary evidence doesn’t speak at all about any positives to be gained by society from changing the definition of marriage.

This is America. Part of what makes this country so great is the opportunity to have different opinions without being afraid of the police of public opinion. I recently moved from Utah to Las Vegas for the summer (from a homogenous society to a melting pot… literally, we’re all melting down here.) I have absolutely loved talking and working with people who have different ideas from my own. It’s fun to have different opinions and discussing issues going on in the world around us. I like it when people disagree with me and we can have a healthy conversation about things and we can still be friends. I find that my thoughts and feelings are much more apparent to me when I get to express myself.

There will be consequences to every decision we make as a country. In the case of legalizing gay marriage these consequences won’t be limited to just allowing gays to be married under the law. Like a pebble dropped in a pool of water, the ripples are already being felt in the domains of education, religion, family life, and public restrooms. Let’s hope we haven’t acted too hastily.


One response to “Obergefell v. Hodges: A belated response

  1. Once again, you again have made a logical argument and backed it up well. It’s why I keep returning to your blog.

    The only thing I would add it that the previously understood basis that a marriage is between one man and one woman is itself discriminatory. The real solution is to abolish the entire premise and get the Government out of the marriage business altogether. I presume we disagree on that single point, but I believe we agree on the over riding principals. I know people on the other side of the issue and their presumptions are misguided. They seem to only want the same stuff hetero married people have. I say (as you apparently also say) that gays had the same rights until the government stepped in and established ANY definition of Marriage. The very definition of what marriage IS is what caused the perceived loss to a decidedly small group of people. Therefore the real solution is to abolish ANY definition of marriage at the government level and leave it to the individuals to decide. Only then can we all decide for ourselves what is and is not a marriage. Things like insurance coverage for family members, visitation by family members in hospitals, and the many other “rights” that Gay people cite as their cause, all go away. Just specify on the application forms who (or what!) you consider to be your “family”. Anti-discrimination laws already on the register (if you buy into that premise) take care of the details. With no specific definition, there can be no discrimination on that point anyway, therefore things like religious discrimination also go away, preserving 1st amendment rights for everyone too. Gays, traditional marriage folks and whomever else decides some other composition of their family, would all be forced to find suitable venues for their marriages and be required to ignore those that disagree, kinda like the rest of us do already. The examples you provide of folks that refused to provide the said services would not burden our legal system. That’s what the founders of this great nation intended.

    Instead, what we got is more regulation, and I suspect another government agency to oversee it, to re-affirm rights that were taken away by that very government. We’re going the wrong way.

    Would you agree?

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