Obergefell v Hodges: dissenting judgment

The compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. Chief Justice Roberts, while opposing the court’s judgment that laws preventing equal marriage are unconstitutional, indicates that they are undesirable. So why does he not strike them down?

Because of conservatism: it has always been this way. Opposite sex only marriage is an unvarying social institution enduring over all of recorded history. Whereas there have been many changes in it, such as the right to divorce, married women’s property reforms- married women are now permitted to own and manage property- and going back to the Bible, the end of polygamy and concubinage.

Oh, and homophobia. The marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Some arguments are plainly silly: he says marriage is for procreation, as if the marriages of the infertile or old were worth less. For the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond. Society has recognized that bond as marriage. Perhaps he would make extra-marital fornication illegal. Perhaps he has not heard of assisted fertility.

He is not afraid of tired old slippery slope arguments: One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.

He states that the constitution protects the exercise of religion, and worries about homophobes who imagine that homophobia is part of their religion. He and they should read the Bible.

His strongest argument is that the Court should be reluctant to strike down laws created through the democratic process. He argues that the due process clause- 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– does not apply.

This is disingenuous. James Obergefell and Ijpe deKoe were married. Then they crossed state lines and by homophobic law were not married- with no due process. The case is not just about the right to marry, but about the right to have a marriage recognised.

Roberts is right to argue against judicial activism. Wittily, he cites discredited cases of judicial activism, such as Dred Scott v Sandford, where the court struck down a law restricting slavery, on the grounds that it violated the rights of slave-holders. Few would stand up for that case now. He did not mention the Citizens United case, where he said “there is a difference between judicial restraint and judicial abdication”.

It is good to see that the arguments against equal marriage are so poor.

Robert Macqueen, Lord Justice-Clerk

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