Vanity thought #1400. “Supreme” Justice

Another major news this week was US Supreme Court decision on constitutionality of same sex marriage. It’s done, there’s no more talking about it, though there could be serious repercussions of this decision in the future, but more on that later.

So far the reaction to the ruling is overwhelmingly supportive. Gays are obviously celebrating and people from as far away as South Africa saying things like “It’s about time, took the Americans long enough”. Others are saying that with this new finality maybe we can all stop arguing about this. Even the conservatives resigned to same sex marriage being recognized and irreversible, though many are obviously not happy about how things turned out.

The court ruled with a majority of 5:4 and published a hundred page document with majority opinion and four dissenting views questioning it. It’s interesting to note that, save for one vote, judges appointed by Democrats voted for and judges appointed by Republicans voted against, and so it took only one out of line Republican to decide the issue.

What made me interested in this case is not the outcome, which was predictable the way things are going in the world, but the dissenting opinions that are discussed in the media as much as the ruling itself. Some language there is certainly colorful, some arguments are persuasive, so I decided to take a close look at it.

The court paper (pdf) starts with the majority opinion so I read that first and found it very thought provoking. Thankfully, the language isn’t tense legalese and, all in all, it was a pleasure to read well constructed thoughts, we don’t get this very often in vernacular press. The whole thing is big and I’d rather start at the beginning instead of trying to summarize it or organize various arguments presented there.

The paper starts with outlining the case itself and giving a brief background of the same sex marriage issue. What happened was that several gay couples brought up cases in State courts, these cases went through several stages and were finally combined together before the Supreme Court. The issue itself became two fold. Petitioners demanded that their States (which reject SSM) issued them with marriage licences, and that States recognized their married status even if they were married out-of-State in places where SSM is legal.

First of all, the court noted that contrary to defendants (the States), the petitioners were not aiming to devalue the institution of marriage, as is usually argued against allowing SSM, but rather sought it for themselves because of their respect for its privileges and responsibilities, as was evidenced from their experiences. This is a somewhat strange point because it seeks to tie up petitioners’ alleged intentions with the legality of the matter, it will come up again in dissenting opinions.

Secondly, the court argued that history of marriage is that of both continuity and change, and listed several aspects in which modern marriage is not quite the same as it was practiced earlier, when the US constitution was written, for example. The arranged marriages are a thing of the past, and so is “coverture” – status of a married woman as that of under authority and the protection of a man instead of having rights of her own. The court here says that these new insights have strengthened, not weakened the institution, and I find it hard to agree or even understand what this supposed “strength” of the modern marriage is.

If the court means that changes are for good and so SSM need not be feared, it should have presented some sort of evidence for such a claim instead of a blank assessment. This point wasn’t picked up in the dissent but the nature of the changes was mentioned – marriage had never been defined as a union between man and wife as arranged by their parents, for example, so, unlike SSM, these changes did not affect the fundamental meaning of what marriage is. Even if they indeed strengthened the institution it doesn’t mean that recognition of SSM would have the same effect.

Then the court ruled that the Fourteenth Amendment requires States issue marriage licenses to the same sex couples and explained why. They say the due process clause of the amendment extends “to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs”, and same sex marriage somehow falls into those.

The relevant part of the Amendment is this: “..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.” One of the dissenting opinions tore up court’s argument here to shreds because States are not depriving anyone of life, liberty, or property here, but rather the petitioners want the State to provide certain services to them.

The court talked about protecting the right to marry and cited several precedents how this right has been upheld through centuries. These precedents have been discussed in dissenting opinion, too, but the most obvious question to me here is why same sex relationships should be called “marriage” in the first place? No one is stopping these people from entering traditional marriage, that right is still there. The cases where courts interfered before were about interracial marriage and marriage for prison inmates. I never thought that prisoners should have the right to marry, that’s why they are in prisons, but it’s not really a big deal.

And then the court got to the juice of the matter – four principles why SSM is deserved to be treated as a traditional marriage. These four will be repeated and expanded on later in the ruling again.

The first premise is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy, that it’s the most intimate decision an individual can make regardless of his sexual orientation. The second principle is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals and that same-sex couples have the same right as opposite-sex couples to enjoy intimate association. The third basis is the safety of the children, in that kids growing up in same sex partnerships must not be made to feel their home situation is any lesser that that of traditional couples. Final principle is that marriage is the foundation of Nation’s social order, and here comes the meat: “There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage..” – they want the States to provide them with benefits.

Obviously, it’s not going to bankrupt the country and material benefits are not the sole driver behind SSM advocates but it will become an important issue in one of the dissenting opinions, too. For me, however, the vague language in support of SSM means that people can make exactly the same claims to practically any other relationship. They just have to say it’s special and it’s part of there individual autonomy and self-expression, and therefore it should be protected by the Fourteenth Amendment.

The court steps on a real slippery slope here because it argues for the value on SSM solely on the basis of how people feel about it. Well, it’s always worth to mention that the court is supposed to interpret existing laws, not people’s feelings, but let’s wait until we get to the dissent.

For me, I can’t help but illustrate the possible next step – this hunk of a gorilla in a zoo that also made news this week with headlines such as “Japanese women go ape over surprisingly handsome gorilla”. I’ll leave you with some of the photos:

Just say that you are in love with him and that being with him is the most intimate decision you made in your life, cite the precedent set by this court, and demand the same level of recognition as traditional marriage. They are about to grant apes a personhood anyway.

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