A sober look at the constitutional questions raised by SCOTUS' marriage equality decision

A week has now passed since the Supreme Court's decision on marriage equality and since the emotional reactions (both positive and negative) were at their height.   So, with some distance from the emotional high of full acceptance,  I want to try to clarify in my own thinking what the real constitutional question was all about -- and how the dissenters reasoned their positions.

I have been studying the 103 page document that contains the majority opinion and the four individual dissents by Justices Roberts, Scalia, Thomas, and Alito.

Justice Anthony Kennedy, writing for the majority, based his finding that same-sex couples have a right to marry on the 14th Amendment in two places:   (1)  the Due Process Clause and (2) the Equal Protection Clause.   He backs these claims up with case law and prior court decisions and dismantles arguments against them.

Essentially, the majority position is that

"The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty."

John Roberts, writing in dissent, goes out of his way to signal his approval of same-sex marriage;  but he disagrees that it is guaranteed in the Constitution.   Rather, he writes, it should be left up to the states and to the people to decide through the legislative process.

Roberts further states that, if he were a legislator, he would consider changing the law "as a matter of social policy.  But as a judge, I find the majority's position indefensible as a matter of constitutional law."

That is the crux of the argument.   Is there a basic right?   And, if not, who gets to decide about same-sex marriage?    The majority says it is a right;  the dissenters say it is not and therefore it is up to the states and the people.

In the majority opinion, Kennedy had anticipated this argument, writing:

"An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.  The idea of a Constitution 'was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.' (West Virginia Bd. of Ed. v. Barnette . . . 1943)."

He also wrote:  "While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed [by existing laws] need not await legislative action before asserting a fundamental right."

Our Constitution gives the power of self-government to the people, but it also protects certain basic rights of minorities from the whims of the majority.   It is the duty of the courts to protect individuals when existing laws violate one of those rights -- without waiting for legislative action, which may not come.

He refers to the 1986 Bowers decision, which upheld the Georgia law criminalizing same-sex behavior between consenting adults in the privacy of a home.    Kennedy points out that this 1986 SCOTUS decision was finally reversed, but it was in effect for 17 years before SCOTUS overturned it in its 1993 Lawrence v. Texas decision.   During that time, "men and women suffered pain and humiliation in the interim."

In addition to the constitutional question, Roberts makes a strong case for the negative social result of this being decided by judges.  He asserts that this decision ends the democratic process "at a time when the people are engaged in a vibrant debate on that question. . . .  Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."

He goes further:

"There will be consequences to shutting down the political process on an issue of such profound public significance. . . . However heartened the proponents of same-sex marriage might be on this day, it is worth considering what they have lost, and lost forever:  the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.   And they lose this just when the winds of change were freshening at their backs."

That would have been a good point -- even three years ago;   but we are past that point.   It is widely accepted that this persuasion has already occurred for the significant majority of people.   The rapidity of change in public approval of marriage equality is unprecedented.   It is now at 60% in the latest polls -- even before this decision of SCOTUS.

The other dissents by Scalia, Thomas, and Alito add more heat, but not much light to Roberts' more reasoned arguments.    I find this fascinating as a constitutional principle debate;   and, to the extent that I can separate those questions from my personal feelings about the rightness of marriage equality, I think the Kennedy opinion and the Roberts' dissent should be studied by legal scholars as a grand debate about these basic questions.

Ralph