Obergefell much like Roe v. WadeJuly 19, 2015
Gay marriage and abortion have little in common except for how each became federal law without ever being codified by Congress. The U.S. Supreme Court's Obergefell decision delivers social change the citizenry not only did not want but in that which it actively fought against.
The overlaps between Obergefell, which imposes same-sex marriage across all 50 states, and Roe v. Wade which did the same with abortion, all point to an overzealous Supreme Court. Similar to Roe v. Wade, Obergefell scoops up a "power" appearing nowhere in the U.S. Constitution and federalizes it. The Court's majority opinion in Obergefell cites the Fourteenth Amendment's Due Process clause to find Constitutional grounds for its decision: "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." Compare this with what the Fourteenth Amendment's Due Process Clause actually says: "nor shall any state deprive any person of life, liberty, or property, without due process of law." The Due Process Clause of the Fourteenth Amendment does only one thing: it imposes the text of the Fifth Amendment regarding due process onto the states. This language bars indefinite detention, arrests without charges, and punishments without trials - basic human rights of colonialists often trampled by England before the American Revolution. The Due Process Clause was written to ensure the American federal government was not empowered to deny citizens those rights as well. The Fourteenth Amendment extends protection of citizens to apply to state governments, too.
We make this assessment to illustrate the folly in the Obergefell ruling, as the Due Process Clause has nothing at all to do with marriage. Marriage, in fact, for most of its history a religious institution with no government intersect, has traditionally been regulated by, and licensed by, the states. With no federal laws governing or regulating the institution of marriage, confusion reigns. On what legitimate basis of jurisdiction were suits filed in federal courts regarding state marriage laws? On what such basis were those suits appealed? And on what such basis did the U.S. Supreme Court agree to hear this matter and rule on it?
Roe v. Wade and its judicial roots were similar. The Court decision imposing legalized abortion on all 50 states began as a challenge to a Texas state law banning abortions in all cases other than protecting the life of the mother. The court ruled in favor of Roe, stating that Texas's law violated Roe's constitutional rights. The case landed with the U.S. Supreme Court, and the 7-2 decision in 1973 written by Justice Blackmun imposing legalized abortion, with few limitations, on all 50 states divided the country, a rift that has never closed since with the issue as undecided morally as ever. Blackmun's opinion focused on a "zone of privacy" carved out by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments that extends to a woman's right to abort, while admitting that "The Constitution does not explicitly mention any right of privacy" and deferring to past Court decisions to cite it.
Roe v. Wade did not settle the issue of abortion from a moral perspective. As illustrated by Gallup significant majorities of Americans oppose blanket legalization of abortion without extenuating circumstances, and such support levels have held rather steady since the 1973 decision. To this day Presidential candidates spar over the issue, in part because Supreme Court nominees are questioned about it as an ongoing "litmus test" on all sides to prove fitness for the bench.
One's opinion of gay marriage aside, the Obergefell decision threatens to expose the very same division of Americans. A recent AP-GfK poll shows as roughly 50/50 split in approval among Americans of the Obergefell decision with greater numbers (56/39) favoring protection of individual religious liberties ahead of protecting the rights of homosexuals. The Court's opinion has done nothing to quell the issue, but it has certainly helped to create concern and discomfort among those who disagree.
As decades have past since Roe v. Wade Americans divided by that decision have continued to debate it. Even as gay marriages continue and grow in numbers in the coming years, this issue as well will endure at the forefront of the American conscience. It would seem that such matters - where no federal laws exist as a basis for such definitive direction and where the Supreme Court intervened rather arbitrarily - are best handled by the states and communities where they are most felt. Not every social issue, after all, is served well as a one-size-fits-all national debate.
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