By Mathew Goldstein
The Obergefell v. Hodges decision supporting marriage equality for same gender couples is one more precedent for the principle that the U.S. Constitution protects the civil rights of minorities against a sometimes recalcitrant majority. Decisions like these depend on interpreting the Constitution as containing broadly applicable assertions of general governing principles. This explains the vehemence of the dissents by four of the Supreme Court Justices. The four dissenting Justices exhibit a substantial discomfort with ordering new equal protection before the law protections nationwide for traditionally disfavored minorities. To avoid that outcome they advocate for interpreting the constitution as freezing in place the animus towards disfavored minorities found in the 18th century laws when the constitution was written.
The Obergefell v. Hodges dissenters, however, deny that 18th century laws exhibit any animus. Instead, they claim that laws limiting marriage to couples of opposite genders were, and still are, properly justified by a government interest that is narrowly confined to regulating procreation. This claim is incoherent and thus should be understood to be an effort to mask their own animus. If regulating procreation is the primary government interest here then why do marriages everywhere remain legally in force after the female completes menopause? Why are mixed gender couples that are known in advance to be incapable of joint procreation always permitted to marry? Why are the marriages of mixed gender couples that are subsequently found to be incapable of joint procreation not routinely annulled? The judges who cite procreation as the primary government interest served by marriage fail to address these questions. The reason for this failure is easy to fathom, it is because they cannot. Marriage is, and always has been, about more than procreation. It is also about jointly raising children (who may have been procreated by a different couple) and about regulating a variety of related financial and social interactions. Today there are approximately one thousand federal benefits and regulations associated with marriage. What are the reasons for denying same gender couples access to these benefits in the 21st century? No sensible answer is ever given.
The irony of the comatose, "it's the 18th century forever," approach to constitutional interpretation, which is often referred to as original intent, is that it is claimed to be rooted in following the historical intent of the founding fathers, yet history does not support it. The 18th century authors of the constitution were well read students of history and philosophy. They were aware that the governing customs and practices of their own time and place, let alone of the 16th century 200 years in their past, were not exemplary. They sometimes criticized popular traditions and mores of their day and believed that they could facilitate future changes for the better. They wrote out specific and detailed instructions when they wanted the law to be fixed and specific and they wrote more general instructions when they preferred that the law be more flexible and broad to support future progress. They understood that the constitution was being written for a future that would be different from the present in unanticipated ways. They wanted the new constitution to retain its relevance and be adaptable for future generations.
Interpreting the constitution to support only those claims that uphold standards already fully realized in the 18th century is hidebound and cowardly. If there are hurricanes, earthquakes, or floods then the culprit will be indifferent physics, not an angry god. The authors of the constitution, and the broad, timeless, principles articulated in the constitution that they wrote, merit more respect. The Equal Protection clause was added to the Constitution by a 19th century action (14th amendment) as an additional broad principle that is consistent with the original intent as expressed in the Bill or Rights, and it clearly applies to all citizens of the United States. Maryland legalized same gender marriage in 2013 and it is also legal in D.C.
The four votes against equal protection is only one vote short of winning and four votes too many.
"I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." - Jefferson to H. Tompkinson (AKA Samuel Kercheval), July 12, 1816
