Thoughts on Obergefell v Hodges
Matthew Martin 6/28/2015 05:32:00 PM
There's a common line of criticism I'm hearing from conservatives--including some of the justices who dissented in Friday's case--that goes like this: without necessarily making it clear whether they think gay marriage should be legal, they assert that "5 unelected judges" was not the right way to legalize gay marriage and that gay people should have sought validation through legislatures instead. I think there are a lot of things wrong with this critique.
For one, the critique sounds like a derailing tactic. Arguing for a more difficult path to legalization is a way of opposing gay marriage without having to stake your reputation on explicitly anti-gay arguments. I think by and large we should just call out these arguments for what they are: arguments against gay marriage from people who know, deep down, that they're wrong.
Even ignoring that, I think these critics are wrong that legalization through the legislatures would somehow be more legitimate or democratic. For one thing, it isn't true that only "5 unelected judges" made this decision--while far from unanimous, there was already a broad consensus among lower courts that the constitution protects the right of gay people to marry. But more importantly, the court's decision was better than a statute, because it recognized that equality in marriage is a fundamental right, not a privilege that legislatures can grant or revoke. The gay rights movement has experienced false starts before, and has experienced backlashes, sometimes violent, in the US and abroad. Marriage is supposed to be something permanent, something too fundamental to allow the next governor, the next state assembly, or the next ballot initiative to revoke. Friday's ruling gives gay people some degree of protection from future backlash, without which we can't truly say their marriages are equal.
One of the most common anti-gay talking points more generally has been that we shouldn't overturn "thousands of years" of traditional marriage. This, I think, has always been their worst line of argument, because all it really says is that gay people have always been a relatively small minority. That's just biology--homosexuality only seems to occur in about 3 to 4 percent of the population, and that has been more or less the case in every society throughout history. Pointing out that a group has been oppressed for millennia is not argument against protecting their rights but an argument in favor.
Overall, Friday's decision has been one of the most heartening events in recent US history. We pride ourselves on being a beacon of freedom, but spent the past couple decades mired in various anti-freedom enterprises, from NSA overreach to the torture of prisoners detained indefinitely without any hope of trial or due process. On Friday, in at least one small respect after a decade of darkness, the USA resumed the cause for freedom--not the first, but one of the first, and by far the largest country to affirm the freedom to marry for all LGBT people.