Gay Marriage: The Supreme Court vs. Another High Authority

On June 12, 1967, in what was a landmark civil rights decision, the U.S. Supreme Court ruled that marriage is a “basic civil right” and that states could not ban interracial marriage. The vote was 9 to 0.

On June 26, 2015 the Court again made history, ruling once more that marriage is a fundamental civil right, this time saying the Constitution guarantees gay Americans the right to marry in all 50 states. The vote was 5-to-4.

The Supreme Court was right in 1967 and it is right again now in 2015.

In 1967, the Court said that, “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

That may seem obvious to most of us today, but back then, it took the highest court in the land to override a decision by a state judge in Virginia who had ruled that, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

And if opponents of interracial marriage 50 years ago got their marching orders from Almighty God, many opponents of same-sex marriage today also base their opposition on a higher authority than the Supreme Court of the United States.

But Justice Anthony Kennedy looked to the Constitution, not the Bible, for his guidance. Writing for the majority, he said that, “No longer may this liberty” for gays to marry “ be denied.” And as did the Court in 1967, Kennedy too invoked the 14th Amendment to the Constitution, which guarantees equal protection under the law, ruling that it applies to same sex couples that want to marry.

“No union,” he said, “is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”

An editorial in the Wall Street Journal noted that while the decision “is a triumph for the gay rights movement … it would have been better for American politics and self government had it been achieved by democratic means rather than judicial fiat.”

In other words, leave it up to the individual states to decide. It is an argument conservatives often turn to, whether they’re conservative Republicans now arguing against gay marriage or conservative Democrats who 50 years ago argued against civil rights for black Americans.

Even those of us who support the court’s decision would have preferred that all 50 states throw out their laws that ban gay marriage. But we have a Constitution for a reason.

What if only 40 states approved of gay marriage? What about the other 10? Shouldn’t gays in those states have the same right to marry as everyone else in the other 40?

Justice Kennedy had something to say about that. “An individual can invoke a right to constitutional protection,” he said, “when he or she is harmed even if the broader public disagrees and even if the legislature refuses to act.”

Chief Justice John Roberts didn’t see it that way. In one of the court's minority opinions he said that, “Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”

But that reasoning is hard to follow. When the law said an interracial couple could not marry, the court did in fact decide that judges have the power to say what the law should be.

Why should it be any different now? Why shouldn’t judges have the power to say what the law should be when they believe the law violates an individual’s constitutional rights?  And while we're on the subject, would Chief Justice Roberts have voted to uphold laws that banned interracial marriage back in the 60s on grounds that it's not up to judges to decide what the law should be?

No, race is not gender. But, when it comes to constitutional rights, they amount to a distinction without much of a difference.

Religious conservatives may never accept the court’s authority when it comes to ruling on something like gay marriage, an issue that, for them, violates biblical teaching. Fine. The church is under no obligation to perform gay marriage. But the church is not the state. No less an authority than Jesus understood that, telling his followers to "Render unto Caesar the things that are Caesar's, and unto God the things that are God's."

Now it’s time for his modern day disciples to understand we don’t live in a theocracy, no matter how much they wish we did. The Constitution is not the Bible. Conservatives, Christian or otherwise, don’t have to like the decision. But they have to accept it – and they should move on.

And that’s what the Republican candidates for president should do: Accept the decision and move on – even though every one of them (at least publicly) is against same-sex marriage.  It's a shame that a Republican can't come out in favor of same-sex marriage and have any hope of winning his party's nomination.  The Christian Right along with the loud voices of conservatism on TV and radio would destroy such a candidate.

Moving on makes political sense.  All the GOP candidates need to say is that the Court has spoken.  The case of gay marriage is now settled.  Then they would be free to move on to the issues that actually help them, issues like the economy and national security.  They should look at the Supreme Court's decision not as a setback, but as a gift, a kind of get out of jail free card.

That, of course, may be easier said than done.  Because too often Republicans come off as stodgy and stuck in the past. They see change all around them and they don’t like it. On some things, they’re absolutely right. There is a greater acceptance today, for example, of having babies outside of marriage. They should be against that -- if for no other reason that single mothers raising kids on their own often leads to a lives of poverty and too often, chaos. But on gay rights, if Republicans are seen as stuck in the past, there’s no reason American voters will want to choose any one of them for president.

Americans always look to the future in presidential elections. Yesterday is just a glimpse in the rear view mirror. And when it comes to gay rights, too many Republicans are too busy looking in the mirror, they're too busy yearning for the "good old days," which weren't all that good if you were gay in America.

Republicans are entitled, of course, to feel any way they want on the issue of gay marriage. And voters, especially young voters, of course, have every right to vote for the future and not the past.