Key aspects of US supreme court marriage equality judgement go unnoticed

Last Friday, the US Supreme Court ruled by the narrowest possible margin (5 to 4) that the American Constitution guarantees a nationwide right to same-sex marriage. Predictably, the decision was greeted with applause and approval from the supporters of same-sex marriage, and dismay from conservative opponents. In Australia, there was a noticeable "bandwagon" element in the popular response. The most common reaction was to the effect that, given that Ireland passed its same-sex marriage referendum, and now the US Supreme Court has given its imprimatur, Australia should get a move on and legalise same-sex marriage here.

The public, however, has largely missed the point. What has generally been missed is the flimsy basis for the Supreme Court decision, and that that all four dissenting judges (including the Chief Justice) were absolutely scathing in their reaction (and in my opinion rightly so!).

In his dissenting judgement, Chief Justice John G. Roberts Jr. said the Constitution had nothing to say on the subject of same-sex marriage. Chief Justice Roberts also pointed out that only 11 states and the District of Columbia had embraced the right to same-sex marriage democratically. The rest of the 37 states that already allow such unions did so because of court rulings.

Another dissenter, Justice Samuel A. Alito Jr., warns that the same-sex marriage decision will be used, not as a shield, but as a club to crush dissent. "Today's decision .....will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women....The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.....(It) will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and im­pose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic sup­porters of same-sex marriage should worry about the scope of the power that today's majority claims".

Justice Kennedy delivered the majority decision of the Court, which held that the Fourteenth Amendment to the Constitution requires a State to license a mar­riage between two people of the same sex. The argument is that the fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choic­es defining personal identity and beliefs".

"The right of same-sex couples to marry is derived from the Fourteenth Amendment's guarantee of equal protection.... The right to marry is a fundamental right inherent in the liberty of the person and, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived of that right and that liberty..... There may be an initial inclination to await further legisla­tion, litigation, and debate, but while the Constitution contemplates that de­mocracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a funda­mental right".

So what is the Fourteenth Amendment? The Fourteenth Amendmentwas adopted on July 9, 1868, and addresses citizenship rights and equal protection of the law. It was proposed mainly in response to issues related to former slaves following the American Civil War. Only Section 1 (reproduced below) of the five sections comprising the amendment is relevant to the judgement.

" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".

The reader can draw his/her own conclusions concerning the relevance of the above to same-sex marriage. My interpretation is that it requires some considerable imagination to construe that support for "equal protection of the right to liberty" is so broad as to encompass a right to same-sex marriage. Indeed if it did, would such liberty also extend to polygamous or incestuous marriage?

Justice Scalia put his position in blunt and scornful terms.

"The substance of today's decree is not of immense personal importance to me ... It is of overwhelming importance, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."

"Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. The five Justices who compose today's majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment's ratification, and Massachusetts' permitting of same-sex marriages in 2003."

Turning now to Australia, we should be glad that our High Court unanimously struck down the ACT's same-sex marriage laws. [The High Court rightly determined that the Federal Parliament has the clear power under Section 51 the Australian Constitution to legislate on marriage, and that whether or not same-sex marriages are legalised is a matter for the Federal Parliament.] The outcome was an undisputable interpretation of our Constitution and the (Australian) Marriage Act 1961. If and when same-sex marriage comes to Australia (and I think it seems inevitable), it is appropriate that it come about via a vote in the Parliament and not through drawing a very "long-bowed" interpretation of some clause in our Constitution.