From Thomas Jefferson to Anthony Kennedy
Supreme
Court of United States of America and same sex marriage
Obergefell et al. v. Hodges 576, 2015[1]
Jorge Castro Urdaneta*
I.- The background: Thomas Jefferson born in 1743 in Albemarle
County, Virginia, a spokesman for democracy, was an American Founding Father,
the main author of the Declaration of Independence (1776), and the third
President of the United States of America (1801–1809), in 1778 he proposed a Bill
for Proportioning Crimes and Punishments:
“Whereas it frequently happens that wicked and
dissolute men resigning themselves to the dominion of inordinate passions,
commit violations on the lives, liberties and property of others, and, the
secure enjoyment of these having principally induced men to enter into society,
government would be defective in it's principal purpose were it not to restrain
such criminal acts, by inflicting due punishments on those who perpetrate them;
but it appears at the same time equally deducible from the purposes of society
that a member thereof, committing an inferior injury, does not wholy forfiet
the protection of his fellow citizens, but, after suffering a punishment in
proportion to his offence is entitled to their protection from all greater
pain, so that it becomes a duty in the legislature to arrange in a proper scale
the crimes which it may be necessary for them to repress, and to adjust thereto
a corresponding gradation of punishments.
(…)
Whosoever shall be
guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a
man, by castration, if a woman, by cutting thro' the cartilage of her nose a
hole of one half inch diameter at the least”.[2]
This Bill for Proportioning Crimes
and Punishments did not become law, but reflect the conception of one of the
American Founding Father and the main author of the Declaration of
Independence, about what he called “Sodomy with man or woman”.
After two hundred thirty seven years of
diverse social, legal and political struggles[3],
the Supreme Court of United Stated of America, with a split verdict –on favor 5
(The Kennedy opinion was supported by Justices Stephen G. Breyer, Ruth Bader
Ginsburg, Elena Kagan, and Sonia Sotomayor) against the Chief Justice 4
(Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas), ruled in favor
of same sex marriage on the 26th of June 2015.
The petitioners sought a writ of certiorari
to quash the decision of the Sixth Circuit Bench, the Court had to resolve two
main questions, if whether the Fourteenth Amendment requires the state to
license a marriage between two people of the same sex, and if the Amendment
also provides for same-sex marriages validated in one state to be recognized in
another. These issues become pertinent due to diverse policy towards same-sex marriages
in different states.
The Supreme Court’s decision assume that the United
States Constitution promises liberty to all within its reach, a liberty that
includes certain specific rights that allow within a lawful realm, to define
and express their identity. The petitioners in those cases seek to find that
liberty by marrying someone of the same sex and having their marriages deemed
lawful on the same terms and conditions as marriages between persons of the
opposite sex.
The judgment has important implications in a profound
way, because stablish a particular reading of the guarantee of due process and
equal protection in the Fourteenth Amendment[4]. The decision clearly overruled the Court’s prior
ruling in the 1972 case of Baker v. Nelson[5],
declaring that a claim to such marriage did not raise “a substantial question”
for the Court to resolve, but now Justice Anthony
Kennedy wrote:
“The Court now holds that same-sex
couples may exercise the fundamental right to marry. No longer may this liberty
be denied to them. Baker v. Nelson must be and now is overruled, and the State
laws challenged by Petitioners in these cases are now held invalid to the
extent they exclude same-sex couples from civil marriage on the same terms and
conditions as opposite-sex couples”.[6]
The case was brought to court by thirty
petitioners, fourteen couples and two widowers that regarded the legal validity
of same-sex marriages in their respective states, although the respective District
Courts pronounced rulings in their favor, these decisions were appealed against
and reversed at the Sixth Circuit Court by the state officials responsible for
enforcing laws that invalidated same-sex marriages in the states of Kentucky,
Tennessee, Michigan and Ohio.
II.- The arguments: The Court built the verdict on four grounds:
1.- The right to marry was one of the vital
personal rights: Marriage is “an esteemed institution” which
“fulfils yearnings for security, safe haven, and connection that express
our common humanity, civil marriage” and thereby recognizing that “the decision
whether and whom to marry is among life’s momentous acts of self-definition” (Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955). The
Court’s precedents have repeatedly described marriage in ways that are
consistent only with its traditional meaning. Early cases on the subject
referred to marriage as “the union for life of one man and one woman,” Murphy
v. Ramsey, 114 U. S. 15, 45 (1885), which forms “the foundation of the family
and of society, without which there would be neither civilization nor
progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888). We later described marriage
as “fundamental to our very existence and survival,” an understanding that
necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1,
12 (1967); see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541
(1942). More recent cases have directly connected the right to marry with the
“right to procreate.” Zablocki v. Redhail, 434 U. S. 374, 386 (1978), which
invalidated bans on interracial unions. Also, the Court sustained that under the Due Process Clause of the
Fourteenth Amendment, no State shall “deprive any person of life, liberty, or
property, without due process of law” The fundamental liberties protected by
this Clause include most of the rights enumerated in the Bill of Rights,
-Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Griswold v. Connecticut, 381
U. S. 479, 484–486 (1965)- “including intimate choices that define
personal identity and beliefs”.
Kennedy’s quote: “The nature of marriage is that, through
its enduring bond, two persons together can find other freedoms, such as
expression, intimacy, and spirituality. This is true for all persons, whatever
their sexual orientation…There is dignity in the bond between two men or two
women who seek to marry and in their autonomy to make such profound choices”.[7]
Dissent’s quote: The Court has acted outside its
powers, invalidated the marriage laws and changed the recognized definition of
a social institution that has acted as the bedrock for human society. Scalia
J. affirms:
“A system of government that makes
the People subordinate to a committee of nine unelected lawyers does not
deserve to be called a democracy (…) [T]he 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 (…). 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….[T]o 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”.[8]
2.- The fundamental nature of right
to marry: The Court in Turner
“again acknowledged the intimate association protected by this right, holding
prisoners could not be denied the right to marry because their committed
relationships satisfied the basic reasons why marriage is a fundamental right.
See 482 U. S., at 95–96. The right to marry thus dignifies couples who ‘wish to
define themselves by their commitment to each other.’ (…). Marriage responds to
the universal fear that a lonely person might call out only to find no one
there. It offers the hope of companionship and understanding and assurance that
while both still live there will be someone to care for the other. As this
Court held in Lawrence, same-sex couples have the same right as opposite-sex
couples to enjoy intimate association. Lawrence invalidated laws that made
samesex intimacy a criminal act. And it acknowledged that ‘[w]hen sexuality
finds overt expression in intimate conduct with another person, the conduct can
be but one element in a personal bond that is more enduring.’ 539 U. S., at
567”.
Kennedy’s quote: “But
while Lawrence confirmed a dimension of freedom that allows individuals to
engage in intimate association without criminal liability, it does not follow
that freedom stops there. Outlaw to outcast may be a step forward, but it does
not achieve the full promise of liberty”.[9]
Dissent’s quote: Thomas J.
affirms: “assuming that the ‘liberty’ in those Clauses
encompasses something more than freedom from physical restraint, it would not
include the types of rights claimed by the majority. In the American legal
tradition, liberty has long been understood as individual freedom from
governmental action, not as a right to a particular governmental entitlement”.[10]
3.- Establish a family and protect children:
A third basis for protecting the right to marry is “that it safeguards children
and families and thus draws meaning from related rights of childrearing,
procreation, and education. See Pierce v. Society of Sisters, 268 U. S. 510
(1925); Meyer, 262 U. S., at 399. The Court has recognized these connections by
describing the varied rights as a unified whole: ‘[T]he right to ‘marry,
establish a home and bring up children’ is a central part of the liberty
protected by the Due Process Clause.’ Zablocki, 434 U. S., at 384 (…) many same-sex couples provide loving and nurturing
homes to their children, whether biological or adopted. And hundreds of
thousands of children are presently being raised by such couples. See Brief for
Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to
adopt, either as individuals or as couples, and many adopted and foster
children have same-sex parents, see id., at 5. This provides powerful
confirmation from the law itself that gays and lesbians can create loving,
supportive families”.
Kennedy’s quote: “That is not to say the right to
marry is less meaningful for those who do not or cannot have children. An
ability, desire, or promise to procreate is not and has not been a prerequisite
for a valid marriage in any State. In light of precedent protecting the right
of a married couple not to procreate, it cannot be said the Court or the States
have conditioned the right to marry on the capacity or commitment to procreate.
The constitutional marriage right has many aspects, of which childbearing is
only one”.[11]
Dissent’s quote: Roberts, C. J., affirms: “The premises supporting this concept of marriage are so fundamental that
they rarely require articulation. The human race must procreate to survive.
Procreation occurs through sexual relations between a man and a woman. When
sexual relations result in the conception of a child, that child’s prospects
are generally better if the mother and father stay together rather than going
their separate ways. Therefore, 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 (…). The
majority observes that these developments ‘were not mere superficial changes”
in marriage, but rather “worked deep transformations in its structure.’ Ante,
at 6–7. They did not, however, work any transformation in the core structure of
marriage as the union between a man and a woman. If you had asked a person on
the street how marriage was defined, no one would ever have said, ‘Marriage is
the union of a man and a woman, where the woman is subject to coverture.’ The
majority may be right that the ‘history of marriage is one of both continuity
and change,’ but the core meaning of marriage has endured”.[12]
4.- Family and social order: The Court
observed the prized position of marriage in American tradition, in Maynard v. Hill held that
marriage is “the foundation of the family and of society, without which there
would be neither civilization nor progress” and a great public institution,
giving character to our whole civil polity.
Also declared, that States have contributed to the
fundamental character of marriage by placing it at the center of many facets of
the legal and social order. 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
and are consigned to an instability many opposite-sex couples would find
intolerable. It is demeaning to lock same-sex couples out of a central
institution of the Nation’s society, for they too may aspire to the
transcendent purposes of marriage. The limitation of marriage to opposite-sex
couples may long have seemed natural and just, but its inconsistency with the
central meaning of the fundamental right to marry is now manifest”.
Kennedy’s quote: “the
recognition that laws excluding same-sex couples from the marriage right impose
stigma and injury of the kind prohibited by our basic charter”.[13]
Dissent’s quote: Alito affirms: “Today’s decision will also have a fundamental effect on this Court and
its ability to uphold the rule of law. If a bare majority of Justices can
invent a new right and impose that right on the rest of the country, the only
real limit on what future majorities will be able to do is their own sense of
what those with political power and cultural influence are willing to tolerate.
Even enthusiastic supporters of same-sex marriage should worry about the scope
of the power that today’s majority claims”.[14]
III.-
Final considerations: Instead the
Court conclusion, the debate over the moral and social dimensions of same sex
marriage will go on and is possible that in many states administrations, officials
will maintain in resistance, introducing obstacles for gay couples to access a
license.
We titled this article “From Thomas Jefferson
to Anthony Kennedy”, because among
his conception about what he called “Sodomy with man
or woman”, in the thick of party conflict
in 1800, Thomas Jefferson wrote in
a private letter: "I have sworn upon
the altar of God eternal hostility against every form of tyranny over the mind
of man"[15], the essence of this affirmation could correspond
with some ideas of the recent verdict of the Supreme Court and the words of the
Justice Anthony M. Kennedy:
“No union is more profound than
marriage, for it embodies the highest ideals of love, fidelity, devotion,
sacrifice, and family. In forming a marital union, two people become something
greater than once they were. As some of the petitioners in these cases
demonstrate, marriage embodies a love that may endure even past death. It would
misunderstand these men and women to say they disrespect the idea of marriage.
Their plea is that they do respect it, respect it so deeply that they seek to
find its fulfillment for themselves. Their hope is not to be condemned to live
in loneliness, excluded from one of civilization’s oldest institutions. They
ask for equal dignity in the eyes of the law. The Constitution
grants them that right”.[16]
The discussion of such subjects related with same sex
married is almost impossible in the Bolivarian Republic of Venezuela, since
the Supreme Court ruled that the Constitution only aloud marriage between men
and women, but since Tamara
Adrián, on Dec. 6, 2015, became the first openly transgender person elected
to the Venezuelan National Assembly, a new dispute arrives over the horizont. [17]
Two ideas from the dissenting —apart of the
issue of same sex marriage and the gay rights cause— expose
serious critics for constitutional democracy and the role of the judiciary in
delivering social change, that concern others countries an societies in the
world. For one hand Scalia
said:
“Today’s decree says that my Ruler, and the Ruler of 320 million
Americans coast-to-coast, is a majority of the nine lawyers on the Supreme
Court. The opinion in these cases is the furthest extension in fact— and the
furthest extension one can even imagine—of the Court’s claimed power to create
“liberties” that the Constitution and its Amendments neglect to mention. This
practice of constitutional revision by an unelected committee of nine, always
accompanied (as it is today) by extravagant praise of liberty, robs the People
of the most important liberty they asserted in the Declaration of Independence
and won in the Revolution of 1776: the freedom to govern themselves”.[18]
“A system of government that makes the People
subordinate to a committee of nine unelected lawyers does not deserve to be
called a democracy”.[19]
Also Alito
warning, today’s decision shows that “decades of attempts to restrain this
Court’s abuse of its authority have failed. A lesson that some will take from
today’s decision is that preaching about the proper method of interpreting the
Constitution or the virtues of judicial self-restraint and humility cannot
compete with the temptation to achieve what is viewed as a noble end by any
practicable means. I do not doubt that my colleagues in the majority sincerely
see in the Constitution a vision of liberty that happens to coincide with their
own. But this sincerity is cause for concern, not comfort. What it evidences is
the deep and perhaps irremediable corruption of our legal culture’s conception
of constitutional interpretation”. Finally:
“Most Americans—understandably—will cheer or lament
today’s decision because of their views on the issue of same-sex marriage. But
all Americans, whatever their thinking on that issue, should worry about what
the majority’s claim of power portends”.[20]
These words expose a sharp critic to the democracy
for the majority and the risks of abuse of judge’s authority.[21]
* Universidad Católica Andrés Bello, Abogado. Universidad Central de Venezuela (UCV), Especialista en Derecho Administrativo; cursante del Doctorado en Ciencias, mención Derecho UCV.
[2] The Founders' Constitution, Volume 5, Amendment VIII,
Document 10 http://press-pubs.uchicago.edu/founders/documents/amendVIIIs10.html.
The University of Chicago Press. The Papers of Thomas Jefferson. Edited by
Julian P. Boyd et al. Princeton: Princeton University Press, 1950.
[3] Vid. Walter Frank. Law and the Gay Rights Story: The Long
Search for Equal Justice in a Divided Democracy. Rutgers University Press,
2014; Lillian Faderman, Stuart Timmons.
Gay L. A.: A History of Sexual Outlaws,
Power Politics, and Lipstick Lesbians. Journal of the History of Sexuality Vol.
18, No. 2 (MAY 2009), pp. 340-345; Harold
A. Abramson. The Historical and
Cultural Spectra of Homosexuality and their Relationship to the Fear of Being a
Lesbian. Journal of Asthma Research, Volume 17, Issue 4, 1980, pp. 177-188;
and Jonathan Ned Katz. Gay American
History: Lesbians and Gay Men in the U. S. A. Rev. ed. New York: Meridian,
1992.
[4] Amendment XIV: “Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States; 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. Section 2. Representatives shall
be apportioned among the several states according to their respective numbers,
counting the whole number of persons in each state, excluding Indians not
taxed. But when the right to vote at any election for the choice of electors
for President and Vice President of the United States, Representatives in
Congress, the executive and judicial officers of a state, or the members of the
legislature thereof, is denied to any of the male inhabitants of such state,
being twenty-one years of age, and citizens of the United States, or in any way
abridged, except for participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the number of
such male citizens shall bear to the whole number of male citizens twenty-one
years of age in such state. Section 3. No person shall be a Senator or
Representative in Congress, or elector of President and Vice President, or hold
any office, civil or military, under the United States, or under any state,
who, having previously taken an oath, as a member of Congress, or as an officer
of the United States, or as a member of any state legislature, or as an
executive or judicial officer of any state, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof. But Congress may by a
vote of two-thirds of each House, remove such disability. Section 4. The
validity of the public debt of the United States, authorized by law, including
debts incurred for payment of pensions and bounties for services in suppressing
insurrection or rebellion, shall not be questioned. But neither the United
States nor any state shall assume or pay any debt or obligation incurred in aid
of insurrection or rebellion against the United States, or any claim for the
loss or emancipation of any slave; but all such debts, obligations and claims
shall be held illegal and void. Section 5. The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article”. The
Fourteenth Amendment “addresses many aspects of citizenship and the rights of
citizens. The most commonly used -and
frequently litigated- phrase in the amendment is ‘equal protection of the laws’, which figures
prominently in a wide variety of landmark cases, including Brown v. Board of
Education (racial discrimination), Roe v. Wade (reproductive rights), Bush v. Gore (election recounts), Reed v.
Reed (gender discrimination), and
University of California v. Bakke (racial quotas in education)” (vid. https://www.law.cornell.edu/constitution/amendmentxiv).
[6] Obergefell et al. v. Hodges 576, 2015, pp. 24-23
[7] 576 U.S.
(2015), p. 13.
[8] 576 U.S.
(2015). SCALIA, J., dissenting, p. 5.
[9] 576 U.S.
(2015), p. 14.
[10] 576 U.S.
(2015). THOMAS, J., dissenting, p. 7.
[11] 576 U.S.
(2015), pp. 15-16.
[12] 576 U.S.
(2015). ROBERTS, C. J., dissenting, pp. 5, 8.
[13] 576 U.S.
(2015), p. 18.
[14] 576 U.S.
(2015). ALITO, J., dissenting, p. 7.
[15] Vid. Frank Freidel & Hugh Sidey. The Presidents of the United States of America. The White House
Historical Association. 2006: https://www.whitehouse.gov/1600/presidents/thomasjefferson.
[18] 576 U.S.
(2015). SCALIA, J., dissenting, p. 2.
[19] 576 U.S.
(2015). SCALIA, J., dissenting, p. 5.
[20] 576 U.S.
(2015). ALITO, J., dissenting, p8. 7-8.
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