Obergefell v. Hodges presented a lot of back and forth on the issue of same sex marriage at the Supreme Court on Tuesday, which was deeply divided as it heard oral arguments in the case. Obergefell v. Hodges is a case which is likely to go down in the history books alongside other landmark civil rights cases. This one centers on two questions: first, whether there is a constitutional right to gay marriage, and second, if not, whether states that have bans on gay marriage have to recognize gay marriages performed in other states where it’s legal. The first question seems to be the most important, and I have tired to sum up the SCOTUS proceedings as succinctly as possible, but it turned out to be way too long. The best summary I’ve read is from a New York Times article by Adam Liptak. I read over numerous articles about the proceedings, and the one by Liptak seemed to be one of the best. So if you want to read about the arguments presented and the questions asked by the justices, then click on the link for the Liptak article.
Let’s face it, most of the arguments against same sex marriage are ridiculous. Opponents argue that same sex marriage: would destroy the institution of marriage, Marriage is for procreation, polygamy would follow, voters should be able to decide, tradition and history, and religious concerns. Those six are the arguments that opponents seem to want to argue most. So let’s look at these one at a time. Same-sex marriage will have no effect on opposite-sex marriage. Quite simply, it will not affect a heterosexual marriage in any way. Also, if marriage is for procreation only, then barren couples should have their marriages invalidated, no one should be able to marry a post-menopausal woman, and couples who do not want children should not be allowed to marry. However, opponents of same-sex marriage still say that LGBT couples should not be allowed to marry because the marriage cannot produce children. What is equal about that? As for polygamy, one of the arguments is for religious freedom, but we deny those whose religion allows polygamy to practice it. So why not allow polygamy? I want only one man in my life, but if you’re Islamic or Mormon, you should have the right to have multiple wives, as long as one woman can also have multiple husbands. Furthermore, if voters were able to decide all issues about equality, the American South would still be segregated, interracial marriage would still be illegal, and sodomy would still be illegal (and for those who would think that it should still be illegal [none of my readers I hope] then please remember that most sodomy laws included any sex that was not in the missionary position). The American voters cannot be trusted with protecting the rights of minorities, which is why we have the 14th Amendment. As for tradition and history, if we are speaking strictly of American history, numerous Native American tribes allowed not only for transgender but also for same-sex marriage. It is only the introduction of Christianity that those tribals laws changed. Which brings me to my last point, America’s Founding Fathers believed in separation of church and state, therefore religious need not apply.
Preliminary indications are that the Court is ready to rule 5-4 in favor of marriage equality. However, while even those opposed to marriage equality concede as much, a win — especially one in which marriage equality is affirmed as a civil rights issue — is no guarantee. The Supreme Court will release its ruling on Obergefell v. Hodges in June. While there’s reason to be optimistic, the oral arguments did not provide a clear win for the LGBT community, and even if marriage equality is affirmed, it could be affirmed in narrow terms that aren’t transferrable to other LGBT cases involving discrimination unrelated to marriage. My greatest fear is that the Supreme Court will issue a very narrow decision in favor of same-sex marriage and those states who allow same-sex marriage will be allowed to continue and other states will be forced to wait, therefore, having two Americas, one with LGBT Americans having marriage equality in some states and others states where LGBT Americans will be deemed second class citizens. I personally am hoping for a broad opinion written by Ginsberg.