Obergefell v Hodges

I was terrified to read Obergefell v Hodges this week, but I ended up finding it fascinating!  I have always understood the LDS Church's moral arguments against gay marriage, but hadn't fully explored the legal arguments against it.  This reading really opened my eyes, especially when I focused in on the dissenting opinions.  

But this Court is not a legislature.  Whether same-sex marriage is a good idea should be of no concern to us.  Under the Constitution, judges have power to say what the law is, not what it should be.  The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”  (p. 41)

In this excerpt, Justice Roberts reminds the public of the purpose of the Supreme Court of the United States.  The Supreme Court was founded, in part, to interpret the United States Constitution.  In this function, they can look at the Fourteenth Amendment and determine what our Founding Fathers intended in drafting and approving it.  The Supreme Court is not supposed to decide what they personally feel is good or appropriate in society and then project those beliefs in their rulings.  

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant.  Not surprisingly then, the Federal Judiciary is hardly a cross-section of America.  Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.  Four of the nine are natives of New York City.  Eight of them grew up in east- and west-coast States.  Only one hails from the vast expanse in-between.  Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).  Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.  The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.  But of course the Justices in today’s majority are not voting on that basis; they say they are not.  And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.  (p. 73-74)

I love this argument Justice Scalia makes!  It’s so easy to get caught up with “non-believers” when discussing gay marriage because we feel so passionately about our religions and faith.  When you take a step back and look at the legalities of Obergefell v Hodges, I feel it’s much easier to form a sound argument.  Not everyone believes the same as I do in terms of spirituality and such, but arguing as Justice Roberts did for the true purpose of the Supreme Court or as Justice Scalia does here levels the playing field.  The last line quoted above is incredibly powerful.  

This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning...As the majority notes, some aspects of marriage have changed over time.  Arranged marriages have largely given way to pairings based on romantic love.  States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status.  The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.”  They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman.  (p. 46-7)

Marriage has long been intended as a way to bring together two worlds and to provide a safe and secure environment in which to bring forth children.  Genesis 2:24 reads, “Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.”  However, marriage has changed significantly in our society over the years.  As Latter-day Saints, we already believe that our marriages have a higher purpose and are ordained of God and I think most Christians feel the same about their marriages when they are performed in a church or by a pastor or someone with ecclesiastical authority.  Anyone can meet someone and hours later run down to the courthouse to be legally married, but that union does not have the same power as, say, an LDS sealing.  For this reason, I believe marriage should be a religious institution, where only churches can perform a marriage.  Everyone else can still enter into a civil union, which alleviates churches of some of the legal issues while still providing legal benefits of a union to the public.  

This section also reminded me of Elder Russell M. Nelson’s address where he said, “The greatest guardians of any and all virtues are marriage and family.  This is particularly the case with the virtues of chastity and fidelity in marriage, both of which are required to create enduring and fully rewarding marriage partnerships and family relationships.”  I feel this is the truest purpose of marriage, to perpetuate our greatest virtues.