As a historian, I often wonder how certain events and people will be remembered in history. As Obergefell v. Hodges made its way through the Supreme Court this term, I began to ask myself: how will historians look back at the Roberts Court? The Marshal Court (three three previous Courts of Jay, Rutledge, and Ellsworth heard few cases) is known for establishing judicial review and establishing the court as a equal branch of the federal government. The Taney Court is best remembered for the Dred Scott case. The Reconstruction Era Courts developed the doctrine of substantive due process based on the Fifth and Fourteenth Amendments. The White and Taft Courts extended due process and the Bill of Rights to the states. The New Deal Courts upheld and strengthened the power of the federal government. The Warren Court was probably the most influential since the Marshall Court, establishing numerous rulings on equal protection and equality during the era of the Civil Rights Movement. The Burger Court gave us one of the most controversial cases, Roe v. Wade, while the Rehnquist Court gave us Lawrence v. Texas and expanded due process. The Roberts Court will probably go down in history as the Kennedy Court. Kennedy seems to be the swing vote on the court as Roberts, Scalia, Thomas, and Alito usually vote as a block for conservative issues, while Ginsburg, Breyer, Sotomayor, and Kagan usual vote as a block on more liberal issues. Therefore, Kennedy is the moderate who makes the real decisions in the courts. Decisions tend to go as Kennedy goes.
In Obergefell v. Hodges, Justice Anthony Kennedy once again was the most important vote and laid out Americans’ right to marry. But the court was deeply divided, and I think that will be what the Roberts court will be mostly remembered for. In a 5-4 landmark decision Friday, the nation’s highest court deemed same-sex marriage a constitutionally guaranteed right, effectively nullifying all state laws that bar gay and lesbian unions.
Justice Anthony Kennedy crafted the court’s majority opinion, but the final ruling was hardly unanimous, with Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito all authoring individual dissents. Here are some of the most important quotes from the major opinion and dissents in Obergefell v. Hodges:
“Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”
“As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. … Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”
“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.”
“Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. … Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
“If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
In Roberts’ dissent, he says that the five justices who voted in favor of marriage equality are making laws instead of interpreting them. However, we all know that as Justice Kennedy so eloquently wrote, “The nature of injustice is that we may not see it in our own times.” All of the important civil rights cases have been decided because there was an injustice that the states or congress refused to address. It has often been the duty of the Supreme Court to I force the principles of due process and equal protection under the law. I disagree with Roberts, the Constitution had everything to do with the decision in Obergefell v. Hodges.
“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. … It is of overwhelming importance, however, who it is that rules me. 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.”
“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Scalia consistently belittles Kennedy’s majority opinion on its prose, but if one were to read Scalia’s eight page dissent, you would see that Scalia makes a mockery of his position. His dissent is not based on legal precedent but one childish rant replete with name calling. Scalia should hide his head in a bag because he demeans the prestige of the court as he whines like a toddler who did not get his way.
“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect.”
Thomas is merely a hypocrite. Obergefell v. Hodges does for same sex couples what Loving v. Virginia did for interracial couples. If the Court did not have the right to make decisions about marriage equality, then Thomas would not be a the lone African-American on the Supreme Court Justice but a Virginia prison inmate for his marriage to Virginia Thomas, a white woman. Thomas needs to understand that he can’t have his cake and eat it too.
“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.”
Alito misses a major point of what the judiciary of the a United States is there for, to protect the citizens of the United States. When legislators fail to protect citizens and make arbitrary and bigoted laws, it takes the judiciary to step in and correct those wrongs. Justice is the conscience of the United States. It is what makes us a land where “all men are created equal.” We are not a nation where some men are created equal and the legislative bodies of this country can create second class citizens of others.
I think the fundamental problem is that the conservative members of the Court do not understand what the purpose of the Court is, which is to provide equal justice for all.