I am not against the legalization of same –sex marriage in the United States. I am, however, against the U.S. Supreme Court using its power to make law which is exactly what the Court did in Obergeff v. Hodges. If all the social arguments and philosopher citations were removed from the opinion, you would see no legal basis for the Court’s holding that a State’s prohibition on same-sex marriage is unconstitutional. Yet instead of handing down a decision that puts the onus on the people and the legislators to make law, consistent with its ACA decision, the Court uses its pen to step into the legislative branch of government. For these reasons, I, like Chief Justice Roberts, must respectfully dissent.
Our government operates through three branches: the legislative, the judicial, and the executive. The responsibilities for each respectively are simple: make the law, interpret the law, and enforce the law. When one branch acts outside of its authority, we lose our democracy. In Obergeff v. Hodges, it is clear that the Court decided to make law to force social change. The first eight pages of the opinion cites no law. Rather it cites the opinions of philosophers and psychiatrists on family and fairness. When it finally adds the law, it is applied incorrectly.
The Court’s introduction of the law starts with a comparison of Bowers v. Hardwich and Lawrence v. Texas. In Bowers, the Court upheld a Georgia law criminalizing homosexual acts. In Lawrence, the Court overruled Bowers and held that laws making same-sex intimacy a crime were unconstitutional. Neither of these cases supports same-sex marriage. What these cases do show is that criminalizing homosexual acts or intimacy between two people of the same sex is unconstitutional. None of the states at issue criminalize same sex couples for either getting married in another state, or cohabitating/being intimate with someone of the same sex in their home state.
The next legal citation is to a 1993 state supreme court decision that required a strict scrutiny analysis to a state law prohibiting same-sex marriage. Here the Court acknowledged that “this decision did not mandate that same-sex marriage be allowed.” The Court goes on to cite Loving v. Virginia (prohibiting interracial marriage) and Zablocki v. Redhail (prohibiting fathers that fail to pay child support from marrying), but again both cases do not apply because the laws imprisoned or threatened to imprison violators. Therefore life and liberty were in question.
When the Court finally brought the constitution into play through the Due Process Clause of the Fourteenth Amendment, it ignores its application to the case at issue. Under the Due Process Clause, no state shall “deprive any person of life, liberty, or property, without due process of law.” A state prohibiting same-sex couples from marriage does not deprive them of their life, their property, or due process. Same-sex couples are not imprisoned, are not in fear of losing property, and are not punished by virtue of a state’s refusal to provide a license to marry. Even the Court acknowledges that because same-sex couples can adopt children and raise a family, they are able to enjoy the benefits that marriage was created to protect. Accordingly, what remains at issue is whether being denied a state license to marry because they are a same-sex couple is fair. What is fair and what is legal is not synonymous. That debate, therefore, should remain between the people and the legislators, not the courts.
When the responsibilities bestowed on the branches of government are misapplied, democracy is compromised. By using the Constitution to insert its views on what the law should be, the people become governed by five individuals. This is neither democracy nor the intent of the Constitution. In fact, and as Chief Justice Roberts explained, the Court’s actions deprives proponents of same-sex marriage “the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.” To be clear, if you are among the many that celebrate this decision, my intent is not to rain on your parade. My dissent is not because for many a desired goal was achieved, but because our government failed to apply the correct means to achieve it.