What are the chief criticisms that Chief Justice Roberts’ dissent makes of the conclusion that the right to marry is a fundamental right?
Obergefell v. Hodges is one of the most significant cases of the US Supreme Court, in which the Court ruled that marriage equality is a fundamental right of the citizens guaranteed by the Fourteenth Amendment to the United States Constitution. Issued June 26, 2015, the decision declares that all states are obliged to issue marriage certificates to all same-sex couples, as well as to recognize such certificates issued legally in other jurisdictions. Before “Obergefell” 11 American states refused to recognize marriage certificates of same-sex couples in other states. The case appeared in the Supreme Court for the reason that Jim Obergefell could not make Ohio recognize dying John Arthur as his legal spouse and heir, despite the fact that they were married before in Maryland.
The majority considers same-sex marriages as a fundamental right to marry inherent in the liberty of the person. However, Justice Roberts expressed his dissenting point of view.
First of all, he reveals the comprehension of a new law and its true value. “It is not for us to decide, whether same-sex marriages are a good or bad idea; taking into consideration this particular matter, we are depriving the voters of the right to choose, and impose their opinion,” notes the Chief Justice Roberts in his dissenting opinion.
Second, Justice Roberts emphasizes the meaning of a marriage that is de jure, free, and voluntary union of a man and a woman, aiming to create a family generating mutual rights and obligations. Marriage enjoys the protection and patronage of the laws only at the conclusion of its compliance with the conditions and entails legal effects known in the field of personal and property rights and responsibilities of spouses in relation to each other and children. In the course of history, nowhere and never, same-sex marriages were not legalized since the purpose of marriage is having children and caring for them. Humankind should multiply.
In addition, children born in same-sex families would have an automatically defined stigma. For example, it might promote sexual confusion and sexual experimentation in young people’s lives. Justice Roberts states, “the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia”. In this case, the right to marry is not the same as the initial right.
Do you agree with the majority or with Justice Roberts on whether the right to marry is a fundamental right, and why?
In my opinion, the legalization of same-sex marriage in the US Supreme Court would certainly go down in the short-list of key events of American history and the whole world as well.
The 14th Amendment to the Constitution guarantees all citizens equality before the law of the United States and gives them legal guarantees. Translated from the law, this amendment requires the proof of the power that denies specific rights and services of a separate group of people pursuing a clear and rational legitimate interest. I consider that marriage should meet the most pressing human needs and embody deepest hopes and aspirations making it possible to develop and be enjoyed in the family. From this point of view, same-sex marriage does not support the vital need in marriage. Therefore, I agree with Justice Roberts who reckons that it is not a fundamental right but something invented artificially.
What is Justice Thomas’s view of the meaning of “liberty” as used in the Due Process Clauses?
Judge Thomas states that liberty within the meaning of the Founding Fathers of the United States was liberty from state regulation, but not the liberty to receive benefits from the state.
He reckons that it goes without saying that those who were refused to obtain privilege for marriage from the government do not lose their dignity due to the fact the government denies them these privileges. The government cannot bestow dignity, and it cannot pick it up as well. Although the creators of the Constitution might recognize the fundamental right to marry in the framework of the definition of liberty in the broadest sense, at the same time, it would not mean that it implies the right to state recognition and privileges.
On the contrary, it was only to the right of the plaintiffs to do what they are now free to do: bring vows to carry out religious rites fastening these vows, raise a family, and enjoy the company of a husband. Incidentally, government intervention is considered unnecessary. Therefore, Justice Thomas’s outlook on the meaning of “liberty” as used in the Due Process Clauses does not recognize same-sex marriage as something should be legalized and regarded within the confines of liberty.
Analyze whether under Justice Thomas’s views of “liberty,” the Supreme Court was justified in using the Due Process Clause to strike down Virginia’s ban on inter-racial marriage in Loving v. Virginia, 388 U.S. 1 (1967).
Loving v. Virginia, 388 U.S. 1 (1967) is the historic civil rights decision of the Supreme Court of the United States that established the liberty of intermarriage. All the members of the Court unanimously supported the decision.
Justice Thomas is saying that the Loving v. Virginia, 388 U.S. 1 (1967) case decision was actually about letting interracial couples live together without being arrested.
In the context of analysis, it seems appropriate to note that US Supreme Court Justice Thomas is married, but many years ago, such marriages were prohibited by US legislation. For nearly thirty years, African-American Clarence Thomas is married to American Virginia Thomas. Their marriage took place in 1984. The historic verdict of the Supreme Court in the case Loving vs. Virginia 1967, in which a white man and a black woman were fighting for the right to marry, in particular, marriage between persons of different races was illegal in many states.
Judge Thomas says, “slaves have not lost their dignity because of the fact that the government allowed making them slaves. Those who were contained in the internment camps have not lost their dignity because of the fact that the Government has entered them into such conditions”.
Thus, one might conclude that the Supreme Court was justified in using the Due Process Clause to strike down Virginia’s ban on inter-racial marriage in Loving v. Virginia, 388 U.S. 1 (1967) from the point of Justice Thomas. According to Thomas, interracial marriages and same-sex ones are fundamentally different because the primary did not require any privileges from the state.
What do you think is the primary point that Justice Scalia is making in his dissent? Support your arguments with examples from Scalia’s dissenting opinion.
Among the four dissenting opinions, there is Judge Scalia. He writes that the decision showed in this court threatens American democracy. “The 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,” argues Judge Scalia. The most important of these liberties is the right to self-government.
According to Judge, the decision taken by the Supreme Court demonstrates that democracy in America is in serious danger. Scalia believes that his colleague’s verdict guided by extremely selfish reasons. “Most of them graduated from the same university on the East Coast of the United States, they have never held elected office, and none of them ever and never elected by the people,” he says. Moreover, they represent only a small group of Americans, and none of them belong to the evangelical or Protestant churches.
Openly ridiculing arguments in favor of the majority opinion, Justice Scalia argued that the Constitution does not contain any justification for the verdict: when in 1868 the Fourteenth Amendment was ratified, each state meant by marriage only the union consisting of one man and one woman, and there were no doubts about the constitutionality of such a state of affairs. The limitation of marriage to one man and one woman contradicts common sense. Moreover, the support of the traditional institution of marriage is as old as government itself, and it is generally accepted among all nations in the history of up to 15 years.
According to Judge Scalia debate that lasted around issues of same-sex marriages in the United States more than 20 years is an essential attribute of democracy. Therefore, the decision to legalize or ban such unions should take the voters themselves and their chosen representatives in local and federal legislatures. I consider the primary point of his dissenting in the conclusion when he claims that the very fact that a group of nine patricians who was not elected but appointed put an end to such political issues contradicts the fundamental principles of a democratic society.
Bibliography
Kennedy, Justice. Obergefell Et al. v. Hodges, Director, Ohio Department of Health Et al. No. 14–556. Washington: Supreme Court of United States, 2015.
Roberts, Justice. Obergefell Et al. v. Hodges, Director, Ohio Department of Health Et al. No. 14–556. Washington: Supreme Court of United States, 2015.
Scalia, Justice. Obergefell Et al. v. Hodges, Director, Ohio Department of Health Et al. No. 14–556. Washington: Supreme Court of United States, 2015.
Thomas, Justice. Obergefell Et al. v. Hodges, Director, Ohio Department of Health Et al. No. 14–556. Washington: Supreme Court of United States, 2015.