No Cloud Over Same-Sex Marriage

In his dissent from the Supreme Court decision legalizing same-sex marriage in all 50 states, Chief Justice John Roberts suggested that any marriage made possible by the case of Obergefell v. Hodges will be forever tainted by an asterisk indicating judicial activism.

“However heartened the proponents of same-sex marriage might be on this day,” he wrote, “it is worth acknowledging 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.” That the victory came through the court rather than the legislative process, he warned, “will for many cast a cloud over same-sex marriage, making a dramatic change that much more difficult to accept.”

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This prediction is not supported in Massachusetts. After same-sex marriage was legalized in 2004 by that state’s supreme court, popular opinion swung heavily against the decision, with 71 percent saying the issue should be decided by popular referendum, and it seemed inevitable the state legislature would advance a constitutional amendment banning gay marriage.

But once the marriages actually took place, opposition dissolved both among voters and legislators. A few years later, it was essentially impossible to win an election in Massachusetts if you refused to accept the “dramatic change” brought about by the court. The citizenry did not want to reopen a debate about whose lives were worthy of “dignity” (to use a favorite word of Justice Anthony Kennedy, author of the same-sex marriage decision), or to revoke civil rights from people who were friends, co-workers and family members.

Among the American public, wide acceptance of Supreme Court decisions mandating the integration of public schools and striking down bans on interracial marriage took decades (far longer than acceptance of same-sex marriage), but it would be naïve to argue that public opinion would have evolved faster without the court’s intervention. It also strains credulity to argue that Americans would be more supportive of minority religious rights if the Supreme Court hadn’t meddled with the democratic process in 1943 by ruling that local governments could not force Jehovah’s Witnesses to pledge allegiance to the flag.

Roe v. Wade may be an exception to the rule, in that the Supreme Court decision preventing restrictions on abortions in the first trimester has not led the way for a significant shift in public opinion. But nothing in Obergefell v. Hodges is comparable to the arbitrary nature of the first-trimester standard. Other Supreme Court decisions have been grounded in social science data, such as the corrosive effects of racial segregation in a society, while there has been no corresponding consensus on abortion. (The question of when life begins resists quantification.) In contrast, most social scientists now believe that sexual orientation is immutable and that “conversion therapy” is ineffective and harmful. As a result, opposition to same-sex marriage is rapidly shrinking to correspond with the number of people who believe that Leviticus 18 takes precedence over the Constitution in American civil law. This change in public sentiment is not going to reverse because Ruth Bader Ginsberg decided there was no justification in further delaying the legal recognition of same-sex couples.

At any rate, Justice Roberts may be behind the curve in his objections to the court’s majority decision. Some opponents are now advancing a “we were here first” argument that their definition of marriage should prevail even if most Americans disagree. Presidential candidate Bobby Jindal accused the court of “conveniently” following “public opinion polls,” and fellow candidate Mike Huckabee told a political gathering the court had defied “the laws of nature’s God,” a view that seems immune to the kind of grass-roots politicking that Roberts suggested was a better path for gay rights activists.

Huckabee and others assert that the right of a gay couple to legal benefits, and the right of a church to marry such a couple should it choose to, must be trumped by the right of a florist or baker not to deal with customers of different faiths. “Are we going to trade one level of what’s called discrimination for a new level of discrimination against people of faith?” Huckabee asked ABC News. This argument for “grandfathering” bias against gay and lesbian people into American civil law is small-minded and uncharitable (“discrimination” for his side, “what’s called discrimination” for the other) is now under a cloud, and history suggests that it will stay there.

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alan macdonald
2 years 5 months ago
This is a blatantly pro gay marriage article. Not at strident as one would find in the secular media, but it's orientation is quite clear. I wish the Jesuits and America Magazine would clearly state their position on same sex marriage and get off the leftist tight rope.
Tom Maher
2 years 5 months ago
The inevitability and unquestioned and unchallenged permanence of same-sex marriage is profound wishful thinking that comes from insularity by journalist elites from wider political realities. The decree by a thin one vote majority of the Supreme Court that there is somehow a same-sex marriage right in the U.S. Constitution created an immediate strong backlash among the four dissenting justices, who regard the decision as a usurpation of legislative powers of the states that bypassed the consent and will of the people and was nothing more than a fresh case of judicial activism that can not be justified could not be justified under the Constitution. And of course the public and most of the candidates for the Republican Presidential nomination also condemned this decision as arbitrary judicial activism to obtain a desired political result without basis. Why would anyone think that this decision would not always be suspect and subject to reversal by the Court or by political reaction? It should be remembered 35 states voted to reject same-sex marriage. (A Massachusetts also wanted a referendum but the referendum was blocked by Democratic controlled legislature which controls about 90% of both houses of the state legislature. If there was such a ground swell for same-sex marriage why did the Democratic legislature not allow the public to demonstrate their support? But in fact no referendum was ever allowed to take place in Massachusetts.) Hitler far more plausibly declared in the 1930s the Third Reich, like the ancient Roman empire, would last 1000 years but in fact went into decline and became extinction in less than 12 years. Also very plausibly the mighty Soviet Empire was declared by American journalist in the 1930s as the inevitable future destiny of all humanity but despite its vast power the Soviet system collapse from within, rejected by everyone living under it after less than 75 years. One has to wonder what is the more realistic life-cycle of the same-sex marriage "right" which was for the first heard of less than 15 years ago? Why should the same-sex marriage right not be a passing fade which will collapse of its own limitations as much more substantially established political entities such as the Third Reich or the Soviet Union did? The author of the post badly underestimates the widespread abhorrence of judicial activism such as the surprise of the arbitrary decreeing same-sex marriage as a Constitutional rights and ignoring the expressed will and consent of the people. The same-sex marriage Supreme Court decision will likely have major permanent political and real-world viability problems.
Joshua DeCuir
2 years 5 months ago
While I do not agree with the other commenter, there is a snideness in some of the comments made here that seems strangely at odds with America's editoral emphasis of late. For example, would Mr. Sullivan consider Pope Francis one of those "people who believe that Leviticus 18 takes precedence over the Constitution in American civil law" given his comments about same sex marriage? What about Pope Francis' top US advisor, Cardinal Sean? Cardinal Wuerl? Likewise Arch. Cupich? Arch. Gomez? Likewise, Mr. Sullivan seems to view (dismiss? deride?) anyone asserting that we have to balance religious liberty rights in the wake of Obergefell as "small-minded and uncharitable" or seeking to "'grandfather[]' bias against gay and lesbian people into American civil law." Perhaps he ought to consider the views of same sex marriage supporters like Andrew Sullivan, Jon Rauch, & Doug Laycock (let alone American contributors like Helen Alvare & Rick Garnett). I hope America considers adding some competing voices to Mr. Sullivan's as elections near.
Henry George
2 years 5 months ago
I do think that Justice Kennedy and the rest of the Justices in the Majority ignored the 10 Amendment in favor of a novel reading of the 14th Amendment. Though it would have take time, letting the States, as is their right as the founders/writers/approvers of this Constitutional Union - The UNITED STATES of AMERICA - was the proper course of action. The Supreme Court could have ruled that any Same Gender Marriage in one State must be recognised in every other State. What the Supreme Court did not have the power to do is to force each State to legalise what the citizens of that State had not yet chosen to legalise. By the majority's argument - Polygamy must be mandated in all 50 states and the laws against Under-Age Marriages become highly suspect in that it is evidently the desires of the two people involved, not the interests of the State that matter and because any Age Defining Law runs up against the 14 Amendment - which I believe gives no strict age limit for Marriage or any other Civil Right. Now you may argue that we have long standing traditions against Marriage before 16...but so what - Justice Kennedy clearly demonstrated he cared not a whit for traditions. As for those who argue that the Supreme Court was correct in striking down Segregation Laws - there is also wisdom in not passing a Law or striking one down until the Society is ready to accept such a Law. What mainly happened with Brown vs Topeka is that in School Districts where those in power did not wish to Integrate did the following: a) They set up Private Schools b) They gave African American Teachers the lowest positions in terms of tenure. c) They worked not to past taxes to help fund the increasing costs of schools. The Supreme Court because it is largely ignorant of how typical Americans live is the last institution to tell us how to live. Mandated equal funding for all schools in a State should have been part of the Court's order and sufficient funding to provide a decent education for all the students and the granting of tenure to all teachers no matter the color of their skin but based on their years of experience and quality of teaching. Those who wish to live by the Supreme Court may well die by it - as we saw with the refusal of the Court to strike down the Death Penalty though innocent people are sentenced to death and though many executions are avoidably painful. I don't know why people grant the Supreme Court Justices a depth of Wisdom they do not have or hold. Yes, they may know the technicalities of the Laws better than most of us, but they have not right in the Constitution or outside of it to tell us that we are inherently immoral via the political/legal stances we take.

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