NWA editorial: The court's new right

Same-sex marriage case not end of discussion

The U.S. Supreme Court decision legalizing same-sex marriage across the country may have settled the issue as a matter of law, but it has refueled an explosive nationwide debate over whether it's right.

The 5-4 decision, despite what some suggest, does not magically split the nation into supporters of gay marriage, on the one hand, and bigots on the other. It gives legal recognition to a right that never before existed in that document at the core of this nations' soul, the U.S. Constitution, but society is still catching up.

What’s the point?

Same-sex marriage is now the law of the land and will not be overturned, but Americans still have a lot of work to figure out how to respond to that ruling.

Five justices moved June 26, 2015, into a list of dates Americans will remember because of the fundamental way they changed the nation. One, we celebrated Saturday, but others linger in our nation's relatively short history: Dec. 7, 1941, Pearl Harbor; Jan. 22, 1973, Roe v. Wade; Sept. 11, 2001, terrorist attacks in New York and Washington; Sept. 22, 1862, Lincoln issues the Emancipation Proclamation; April 9, 1965, Gen. Robert E. Lee surrenders; May 17, 1954, Brown v. Board of Education.

For those same-sex couples who wish to be bound together in marriage, it was indeed a date of celebration. Never before in U.S. history have their lives collectively been treated with such respect. It was only a few years back when "in the closet" was the euphemistic description of the lives many felt it necessary to live. Within a couple of decades, homosexuality has gone from "perversion" in the eyes of society to a high court decision affirming their right to marry. In terms of political movements, it's an amazing success story.

The case was not just about the topper on the wedding cake featuring two tuxedos or two wedding dresses. For the majority of Supreme Court justices, it hinged to a significant extent on same-sex couples' access to benefits afforded through law to those who can marry. Those benefits involve taxation, property rights, inheritance, medical decision-making, rights and benefits of survivors, health insurance, child custody and many more, and help explain government's direct interest in what marriage looks like, according to the court.

"The states have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order," the majority opinion stated. "There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the states have linked to marriage."

Four justices strongly disagreed, claiming the majority fabricated a constitutional right out of thin air. Many of those disheartened by the court's ruling find solace in the fact it was a 5-4 decision, suggesting that means it somehow can be overturned and marriage can thus be returned to the opposite-sex institution it has long been. That's extraordinarily unlikely. Chief Justice John Roberts, in his dissent, did not argue same-sex marriage would be or even deserves to be banned forever. Rather, he suggested the process of achieving that end should not be the court's purview, but lawmakers in the states.

"In short, our Constitution does not enact any one theory of marriage," Roberts wrote. "The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition."

Roberts noted advocates of same-sex marriage have achieved considerable success convincing their fellow citizens through the democratic process to adopt their view. He suggests that process -- over the long term -- would have in all likelihood help make same-sex marriage a more accepted idea

"Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law," Roberts wrote. "Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept ...

"Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs."

The legal battle has indeed been won, but the cultural shift will remain more difficult. Roe v. Wade legally settled the larger question of the legality of abortion, but society continues to wrestle with it. Likewise, just because five justices say same-sex marriage is legal does not mean Americans as a whole are ready to accept the many implications the ruling has for society.

Chief among those concerns are religious liberty. Even the majority justices wrote ""it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."

Consider also this from the majority's ruling: "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. ... Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect."

What can be more intimate and personal than one's faith? Wouldn't one have to place religious liberty among those fundamental rights?

And so we move forward with serious questions about how government handles conflicts between the very personal and deeply held religious beliefs and those who have convinced five justices same-sex couples have a right to marry. It's those conflicts that will take a long time to sort out, and we're hopeful the courts will show as much respect for a right specifically enumerated in the Constitution -- the right to hold religious beliefs -- as they did in the right they interpreted out of that document. More to come on that front.

Our basic takeaway from last week's ruling? It's now the law of the land, and although some politicians will huff and puff about overturning the court's decision, that won't happen. County clerks, for example, should indeed resign as one did last week if they don't want to issue same-sex marriage licenses. The offices they were elected to are charged with carrying out the law, not implementing personal prerogatives. Same-sex couples cannot have earned a right to be married through the Supreme Court only to have it thwarted by a local clerk's obstinance.

Americans, a term we find quite inclusive, can hopefully treat each other respectfully no matter what as the engagements -- political and matrimonial -- of the future take on new form.

Commentary on 07/05/2015

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