President Obama, following the historic Supreme Court decision legalizing gay marriage in Ohio and every other state, said, “sometimes there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.”
Republicans running for President have criticized this “thunderbolt” as the work of five unelected judges imposing a policy on America. The main legal criticism has been to suggest that the Court should simply apply the Constitution as originally written.
The key to responding to your conservative friends, and understanding the Obergefell decision, is to recognize that the President is wrong in his characterization.
We have put together a brief quiz to share. Kind of a discussion guide. Give this to your conservative friends.
This quiz illustrates that the Obergefell decision was the inevitable conclusion from a long line of cases recognizing that the Fourteenth Amendment to the Constitution provides protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In the Casey decision, Justice O’Connor wrote, “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment”
Lets start with the text of the Constitution. The Fourteenth Amendment declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” If you are Justice Scalia, you simply say, “When the Fourteenth
Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”
This part is easy. Nobody really agrees that the Fourteenth Amendment locked us into an 1865 conception of “liberty.” A time when women and people of color could not vote.
In decision after decision, the Court has expanded this concept of “liberty.” Most notably, the Court recognized so-called “new rights” in the following cases:
- In Loving v. Virginia the Court held that the state could not prohibit interracial marriage.
- In Griswold v. Connecticut, the Court held that the state could not prohibit married couples from using contraceptives.
- In Eisenstadt v. Baird, the Court held that the state could not prohibit the sale and use of contraceptives regardless of marital status.
- In Lawrence v. Texas, the court held that the state could not prohibit adults from engaging in consensual sexual activity.
We suspect most of your friends will agree that these cases were correctly decided. A common theme is that in each case the court overruled democratically approved laws in order to protect individual rights.
And once you can agree on this, a key idea should be obvious: we want judges to do this. Federal judges have life tenure precisely so that they can make unpopular decisions to protect liberty. Especially the liberty rights of minorities. Courts are, by definition, undemocratic; we would not want it otherwise.
If your conservative friends need any more convincing, ask them to think about Brown v. Bd. of Education. If the Court should not be disturbing years of tradition and precedent, then how could the Court have ruled in favor of the black students? When the Fourteenth Amendment was enacted, “separate but equal” was considered to be not only legal, but appropriate. Would your conservative friends believe that the Court was wrong to step in and overrule numerous states’ democratically elected representatives? Should the Court not have “discovered” this “new right” of African-American Children to attend “white” schools? Or should they just have let the democratic process continue to work?
The key to reaching out to conservatives who are upset by the Obergefell decision is to try to reach common ground on the idea that even if people find same sex marriage offensive for religious or other reasons, the Supreme Court has a legitimate role in defining liberty, not mandating a moral code. This is your common ground. Once this idea is accepted – and it should as you work through these decisions – then it is easy to discuss how far that liberty interest reaches.
The Obergefell decision is easy at that point. The Court simply held that individuals are free to make the choice of whom they marry for themselves. To find otherwise would be to permit the state to compel or enforce one view of marriage over another.