Yesterday, the Supreme Court decided Obergfell v. Hodges, which effectively made gay marriage the law of the land. This was clearly anticipated and came as no major surprise including the rationale under an Equal Protection argument (notice how Kennedy took strides to avoid the level of scrutiny question) and the author of the majority decision. The surprising part was that it took Kennedy 28 pages of soaring, sometimes nauseating rhetoric to explain it. The rhetoric and reactions to the decision have run the gamut. Needless to say, this is not the end of civilization as we know it. But one thing can be almost guaranteed and I believe this was the main crux of the case- this issue will have profound effects down the line in the future and because the Court, in a 5-4 decision, decided this case, the controversy will continue. History dictates such when the Supreme Court wades into areas and rapidly decides an issue before the democratic process has been completely played out.
We can look back in history and use it as a guide for how this will eventually play out and we will likely be debating gay marriage 50 years from now. At a time when slavery was dying a slow death, the Supreme Court waded into the controversy with its Dred Scott decision. The abolition movement was certainly strongest in the North, but was taking hold in the South. Technology eventually would have replaced slavery. International pressure and the political process would have eventually ended slavery without a Supreme Court decision and a Civil War. Of course, there would have been hold-outs as there is with any contentious issue.
We can look to the New Deal Supreme Court which stretched the limits of the Commerce Clause beyond anything the Founders envisioned. Decisions that effectively stated that not participating in commerce was commerce and therefore could be regulated is nothing our Founders had in mind when they wrote the Constitution, but that is what the Court decided. The result was an alphabet soup of regulatory agencies that greatly expanded the role and scope of the Federal government that intruded into many aspects of personal and businesses lives. Today, the role and scope of the Federal government remains a contentious issue and is perhaps the defining difference between liberals and conservatives.
We can look to the 1970s and the Court’s decision in Roe vs. Wade which found through “penumbras and emanations” a right to abortion. At the time, abortion laws were being liberalized throughout the United States through the democratic process. Like today, there would be hold-out areas. Yet today, the issue of abortion is no less contentious than it was in 1972. In fact, a case can be made that it is more contentious today. And the reason is that the Supreme Court waded into the issue and sped along the process.
These cases illustrate a fundamental difference between liberals and conservatives. By nature, conservatism is “slower” and more deliberative while liberalism is impetuous and seeks more instant gratification. Conservativism is the thinking parent; liberalism is the spoiled brat child who wants what they want and they want it now! Like a spoiled child getting its way, it only creates problems down the line. And I can guarantee you one thing- gay marriage will be debated down the line because the spoiled brat child will be a spoiled adult.
What will happen when the first religious institution refuses to perform a gay wedding? Will the 14th Amendment or the First Amendment win out? Kennedy in his decision notes that the ruling does not interfere with First Amendment rights and speaking out in opposition to gay marriage. Does this then mean a caterer or baker or florist can refuse to serve a gay couple’s wedding? What if states take e novel approach and get out of the marriage license issue altogether as Alabama is trying and making a “marriage” relationship a contractual one where a lawyer of clergy member witnesses and notarizes the contract? Of course, the state probate courts could not simply refuse to accept such contracts, but could the state force all lawyers and clergy members to witness a same-sex contract?
These questions would be considerably more hypothetical if the issue was decided by the democratic process. And part of that process is open debate. And part of that debate is pressure placed on lawmakers and voters by interest groups on both sides. In no state, for example, is the LGBT community excluded from that debate. If opposition to gay marriage is predicated upon outdated mores that deny 2% (at best) of the US population the dignity of marriage as they claim, then it is their task to convince the public. I frequently use the example of Maine whose voters disapproved of gay marriage one year only to approve it three very short years later. In more conservative states, the process may have taken longer, but if the gay community is right they would have eventually prevailed and victory would have been sweeter, more long-lasting and eventually less contentious.
As Chief Justice Roberts mentioned in his dissent, let the celebrations begin for the supporters of same sex marriage. But the ultimate loser here was the democratic process. This was not the end of the debate, but the beginning of a new one as this newly created right will inevitably run into conflict with other rights. That is where the battle lines must be drawn. As the controversy in Indiana earlier this year has shown, the opponent is loud, vocal and will stop at nothing including threats against innocent pizza shop owners, florists, bakers and photographers. Will states crack down on private citizens and businesses for exercising their conceded constitutional First Amendment rights to oppose gay marriage? My best guess is that we are not off to a good start in the next battle. It is not the end of civilization or American society. Despite a Civil War, despite a large and intrusive government, despite the daily slaughter of innocent human life, we are still here. Because gays can now marry in all 50 states, we will be here in the future. It is just that the debate will rage on and there will be in the inevitable skirmishes to be fought.