The Supreme Court rendered its decision on Marriage Equality, finding for the petitioners in Obergefell v. Hodges. I have expressed my spiritual views on this matter. Suffice to say that I am broadly sympathetic.
What is curious to me is the content of Roberts’ dissenting opinion, in which he ends with the pouty “Don’t celebrate the Constitution. It had nothing to do with it.”
Roberts’ argument is that the Court was acting in a legislative role, redefining the meaning of a term of legal parlance (“marriage”) in a way that was not supported by the 14th Amendment. He references precedents concerning just compensation that the court later recognized overstepped the bounds of the 14th Amendment. Roberts also accuses the majority of undermining the process of democratic debate that was slowly turning the tide of public opinion in favor of same-sex marriage.
I find Roberts’ interpretation of judicial activism in the application of the 14th Amendment to be manipulative. As he asserts, certainly in the precedents he cites the Court should not have been trying to determine what is “fair” compensation. However, the 14th Amendment was established to address the issue of lack of compensation (slavery). Compensation for labor is a fundamental right.
In reading the majority opinion, I find validity in the conclusion, reached through detailed analysis, that marriage is such a fundamental right. They also establish clearly that denial of the right imposes burdens, both psychological and material, on same-sex couples. I believe that their opinion establishes a sound philosophical basis for application of the 14th Amendment, which exists precisely to overthrow long-held social prejudice that denies rights to minorities.
Roberts also makes a hysterical reference to the First Amendment, warning that religions that fail to perform same-sex marriage may lose their tax-free status. However, the establishment clause actually, in this case, applies in the other direction. There are religions that perform same-sex marriage, and no one has suggested that they be denied their tax-free status. The existence of laws that deny legal rights to same-sex couples joined by such religious authority is actually a form of establishment, and should be repelled.
I would be impressed if the dissenters addressed the substantive reasoning of the majority. As it is, I am afraid that they are simply going to fire the anger of those that find the definition of marriage to be a fighting matter.