…And Four Against Same-Sex Marriage (Not Really)

Written by Steven Spear, Jr.

Edited by Morgan DeLisle


In the previous article, we learned the background of Obergefell v. Hodges, and we learned how the Supreme Court came to the conclusion that same-sex marriage bans were unconstitutional. (I recommend reading that article first).

Only 5 of the Court’s 9 Justices voted to declare same-sex marriage ban unconstitutional. The other four voted to allow states to continue to ban same-sex marriage. But not necessarily because they morally disagree with same-sex marriage. Let’s look at the most important reasons that Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito voted against declaring the bans unconstitutional.

The Definition of Marriage

The majority claimed that Loving v. Virginia was an example of how marriage was fundamentally changed—by allowing interracial marriage. In reference to this comparison, Roberts wrote, “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.” Roberts disagrees with the majority by making a valid point: Loving removed the “racial barriers to marriage” but “did not change what a marriage was” [between one man and one woman].

Dignity, Liberty, and the Right to Privacy

To the idea that same-sex couples/marriages are not dignified unless recognized by the government, Thomas writes, “Human dignity has long been understood in this country to be innate, and the government [is] incapable of bestowing dignity. The corollary of that principle is that human dignity cannot be taken away by the government.”

To the idea that same-sex marriage bans violate a same-sex couple’s liberty, Thomas writes: “In the American legal tradition…state decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word ‘liberty’ to refer only to freedom from physical restraint. [Obergefell and others] cannot claim, under the most plausible definition of ‘liberty,’ that they have been imprisoned or physically restrained by the States for participating in same-sex relationships.”

To the idea that same-sex marriage bans violate a same-sex couple’s right to privacy: While some see the right to privacy as a right to make personal decisions, it has been interpreted by federal courts as a “right to be let alone” (from government intrusion). Meaning that the police cannot search your house without a warrant. Keeping that in mind, Roberts argues that because the marriage bans “involve no government intrusion, create no crime, and impose no punishment that the [marriage] laws in no way interfere with the ‘right to be let alone.'”

Judicial Overreach

All of the dissenting Justices spoke at length on how the majority wrongly expanded the role of the Court in a way that threatened the authority of the legislature and the democratic process. The late Scalia focused his entire dissent around this idea, and in Scalia-like fashion, he gave a blistering review of the majority’s reasoning:

“Buried beneath the mummeries and straining-to-be-memorable passages of the [majority] opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect.

“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

“The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

(To give this criticism context, the argument of judicial overreach was also used against the Court in Brown v. Board of Education—the landmark case that held segregation in public schools unconstitutional.)

Attacking those who Disagree

Let’s think through the ideal situation of someone who believes in traditional marriage: One man and one woman marry (and stay married) and, only after getting married, have children. Today, we see high divorce rates and children being born to unmarried couples.  For traditional marriage thinkers, the sanctity of marriage is eroding. To them, allowing same-sex marriage is just a further erosion of marriage.

Alito writes, “Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. …States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. [And] by imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas, and the decision will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”

As Alito correctly guessed, some religious organizations that have opposed Obergefell are labelled as hateful groups. If you find yourself thinking that way, pause: You have asked that these “hateful” groups be understanding of the feelings and situations of the LGBTQ+ community, and I humbly ask the same of you. Read Morgan’s article, “Crosses and Rainbows,” that carefully explains why some of us, who are certainly not hateful people, still do not agree with the homosexual lifestyle.

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  1. tisispear · ·

    The laws of the land should be recognized, but they do not trump God’s word. His grace is sufficient and His mercies are great, but He shall not be mocked.


  2. […] problem with same-sex marriage. So then why did they disagree with the majority? Continue reading this article to understand the dissents of those four […]


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