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This year’s Pride Parades held an extra level of festivity that set them apart from previous years, but not everyone is thrilled about the cause for this celebration. The national legalization of same-sex marriage caused contention across the country, with conservative churches speaking out against it and county clerks refusing to issue any marriage licenses at all. As you read this, keep in mind that I am by no means a Constitutional scholar. I don’t know the extensive history of Supreme Court cases. But when I read the dissenting Justices’ opinions, I couldn’t help but take them on. ROBERTS
Roberts’ first argument is that it’s an issue of states’ rights. o It’s not an issue of states’ rights. The 14th Amendment states pretty clearly that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Either marriage is an inborn human right (as it is in international law), in which case it cannot be denied, or it’s a privilege (as Justice Thomas argues), in which case this Amendment prevents it from being limited. Roberts then says that Supreme Court doesn’t have the authority to overrule majority opinion. o First, the Supreme Court is supposed to be impartial, regardless of what the majority thinks. The downside of pure democracy is that, as long as at least 51% of the population agrees on an issue, they can stomp all over whichever minority they choose. Fortunately, we don’t have a pure democracy. The Court is supposed to override the majority if the majority is in the wrong. The majority may rule, but there are safeguards in place to prevent minority rights from being eclipsed. SCALIA First, Scalia also doesn’t think Supreme Court has the authority. o See ROBERTS His other big argument is that the 14th Amendment was never intended to justify marriage equality. o My opposition to this is primarily pragmatic. We can’t rule in 2015 based on an 1868 mindset. The word ‘homosexuality’ didn’t even appear in print until 1869, and it was only connected to an identity in 1886. We can’t let the ideological limitations of the past determine our path through the future. THOMAS Thomas argues that the majority opinion contradicted the idea written in the Declaration of Independence that human dignity is innate, and instead posits such dignity as granted from the government. o I don’t see it this way at all. In my view, the government is only protecting that innate human dignity and allowing it to flourish. Justice Kennedy summed up my thoughts pretty well when he said that the plaintiffs were “seeking equal dignity in the eyes of the law.” He doesn’t believe that a state ban on same-sex marriage is a significant hindrance on liberty. Drawing from various laws and legal precedents, Thomas said that ‘liberty’ is either freedom of movement or freedom from government action, not entitlement to a particular privilege. o Excuse me, but what? This is the thinnest, most contrived argument I’ve heard in opposition of same-sex marriage. It’s entirely semantic. And even if I buy that marriage is a privilege (which I don’t), privileges are earned. What have hetero couples done to earn the privilege to marry which homosexual couples have not? Lastly, he foresees legal and social conflict between same-sex couples and conservative churches who might be forced to marry them. o Although we should keep conflict in mind and seek ways to prevent it, progress should never be stopped by fear. Also, do you really think that same-sex couples will even want to get married in a church that hates them? I don’t think it’s a realistic concern. ALITO According to Alito, liberty only applies to principles rooted in US tradition. Gay marriage is new and therefore not covered. o So you want to forbid same-sex marriage just because we haven’t allowed them in the past? America’s past is pretty messed up and chock full of human rights violations. I’d just as soon not base our future laws based on traditions of disenfranchising and murdering minorities. He used the procreation argument. o Seriously? This is the oldest point in the book and the easiest to knock down. What about old couples? Or infertile couples? Under this reasoning they should they not be allowed to marry, yet clearly nobody has a problem with these. Alito argues that we don’t really know what the impact of legalizing same-sex marriage will be on the institution of marriage, therefore we shouldn’t allow it. o I would ask Alito one question: what bad effects do you foresee? If you have concrete concerns, by all means let’s address them. Otherwise, move your fearmongering out of the way. He anticipates conflict between religious liberty and progressive ideas, and thinks that progressive ideas should back down. o First of all, see THOMAS for my thoughts on conflict avoidance. Secondly, I’m on the side of equality. The only way religious liberty will conflict with progressive ideas is by stalling the progression of equality. The court is overstepping its bounds o See ROBERTS. I do think these Justices have some valid concerns. A tyrannical Supreme Court who hands down restrictive laws willy-nilly would be very bad for this country. However, this is clearly not what happened. Although this decision may be interpreted by some as outlawing anti-homosexual sentiment, it’s only ensuring that another group of citizens gets one step closer to equal footing in the eyes of the law. We’re by no means done, though. The right to marriage is not the be-all and end-all of LGBTQ rights. My own hometown has repeatedly voted down an ordinance banning discrimination based on gender identity or sexuality, and Berea is not the only place lacking such protections. There are a disproportionate number of transgender teens living on the streets. Homophobia and transphobia still run rampant in this country. The legalization of same-sex marriage is an important legal foothold; let’s use it and keep on climbing. If you want to read more, I recommend this HuffPost article. It's totally partisan, but it's a well-written piece that represents my thoughts pretty well. Also, here's a list of some of the most popular pro/con arguments surrounding same-sex marriage.
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