Speaking Before Thinking – Reactions to the Obergefell Decision

On June 26, 2015, the Supreme Court of the United States ruled on the case of Obergefell v. Hodges. It was actually a merging of several cases across multiple states, but was spearheaded by one Jim Obergefell of Ohio. He had married his partner, John Arthur, in Maryland in 2013. Mr. Arthur was, at that point, dying of ALS. Three months and eleven days later, John died of his illness. At that point, back in Ohio, Obergefell simply wanted the state to allow him to place his name on John’s death certificate as “spouse.” After all, they had been in a committed relationship for 20 years, and were legally married at the time of John’s death. Jim wanted Ohio to recognize his marriage to John, the same way they would recognize a straight couple. The fact that he married in another state was a matter of convenience, as Ohio officially banned marriage between same-sex couples in 2004.

Jim Obergefell simply wanted recognition as the surviving spouse. So he filed a lawsuit against the state. A federal judge, somewhat surprisingly, ruled in his favor. Ohio subsequently appealed to a higher court, stating they wished to reissue the death certificate without Jim’s name. This time, the state won. So Jim went higher still, to the Supreme Court. And, last Friday, the Supreme Court, in a 5-4 decision, ruled in favor of Jim Obergefell.

The eventual question in the decision was:

Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy agreed that the Fourteenth Amendment does apply to same sex couples, in that they are due equal protection under the law. Since the law allows for marriage benefits and privileges for heterosexual couples, consensual homosexual couples should not be denied the same rights.

The uproar was predictable, as well as vitriolic. The reaction among leaders in the GOP, especially current Presidential candidates, was particularly angry. Quite often, it appeared that the reaction from certain public figures was primarily intended to show the base they were upset by the decision, without actually responding to the merits of it.

I have collected some of the more ridiculous public statements issued by American political personalities since the decision, and a brief response to the statement. I’m starting with the current crop of 2016 Presidential candidates.

Ted Cruz, Senator from Texas:

Friday was “some of the darkest 24 hours in our nation’s history,” that the decision was “very definition of lawlessness,” and it amounted to “naked and unadulterated judicial activism.” 

Really Ted? Some of the darkest 24 hours in our history? So that means Ted Cruz believes that equal rights for LGBT citizens is somehow equivalent to Washington DC burning in 1812, the attack on Fort Sumter, Pearl Harbor, and 9/11. Gay people getting married is now akin to thousands of innocent civilians being murdered. And this man wants to be President.

He’s also wrong when he refers to the decision as “the very definition of lawlessness.” Ted, do you know the meaning of the word ‘lawless?’ Or for that matter, ‘definition?’ The Supreme Court ruled on a case that came to them through the normal channels. The original complaint was that the Equal Protection Clause of the 14th Amendement should cover marriage laws for same-sex couples in every state. A majority of the Court agreed. They did their job. Quite legally, too. It just happened to acknowledge that gay people are due the same rights and privileges as straight people. Not exactly ‘lawless,’ Ted.

Mike Huckabee, former Arkansas Governor:

“The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do — redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. … The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the laws of gravity.”

My initial response is that it’s amusing that Mike is willing to reference “the laws of gravity” when he doesn’t believe in evolution. But I digress…

First off, the “divided voice” part is supposed to invalidate or weaken the decision? Who cares? Most of the contentious issues the Court sees tend to be close decisions. 5-4 is pretty typical for these cases. If it had been 5-4 the other way, it’s not hard to imagine phrases like ‘clear majority” and “judicial mandate” bandied about.

Second… well, second, third and fourth… Mike’s just got so much wrong in such a short quote. I’m not completely sure where to begin.

Supreme Being? Not relevant in a Supreme Court decision. First Amendment, and all that. Plus, the government actually can “redefine marriage,” since sanctioning marriage, and providing benefits for it, is something government has done since the founding of the country. Religious marriage ceremonies are different from state marriage licenses. If one’s religion has specific rules about marriage, one is free to engage in (almost) any ceremony to follow those rules. First Amendment once again. If one wants government recognition for their marriage, that’s a different story. And that is what the Supreme Court covered, and what people like Huckabee clearly don’t understand.

Finally, what’s this about “acquiescing to an imperial court?” Mike, do you think SCOTUS is going to force you to marry a man? Do you think you’re going to resist marriage equality by… by what, exactly? Plan to try to deny gay people marriage licenses? Good luck. Last I checked, you’re not a governor anymore.

Bobby Jindal, current governor of Louisiana:

“Marriage between a man and a woman was established by God, and no earthly court can alter that. This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree with this decision.”

Now, some of this is terrifying. Terrifying, in that he may actually believe the second part of this. Why the fearmongering, Bobby? What do people disagreeing have to do with “assault against the religious freedom rights of Christians?” Say Louisiana grants marriage licenses to same-sex couples. In what way does that affect Christians? Not once did SCOTUS indicate that churches and religious organizations will be forced to perform ceremonies against their will. They don’t have to perform ceremonies for straight couples if they don’t want to. All the ruling said was that same-sex couples are entitled to the same government-provided benefits that heterosexual couples get. Nothing more. It doesn’t impact religious freedom, Bobby. I really can’t stress that enough.

As far as marriage being established by God – well, that’s not for the government to rule on. This is now my third reference to the Establishment Clause of the First Amendment. Marriage as a public institution is a different concept from marriage in a religious setting. That’s why you have to get state licenses separately from the actual church (if that’s where one has the ceremony).

Doom, gloom, and fear from Bobby Jindal. I thought weddings were supposed to be happy occasions.

Oh yes, and Bobby also wants to get rid of the Supreme Court. Yep, the entire Court should be abolished.

“The Supreme Court is completely out of control, making laws on their own, and has become a public opinion poll instead of a judicial body. If we want to save some money, let’s just get rid of the court.” 

Yep, that’s right. The Supreme Court happened to make a decision that Bobby disagreed with, so he just wants to take his ball and go home. Clearly we don’t need an entire branch of government, because they happened to do their job and check the power of another branch. You know like the Constitution intended… Ah. Yes.

Moving on…

Rick Santorum, former Senator from Pennsylvania:

“Today, five unelected justices decided to redefine the foundational unit that binds together our society without public debate or input. Now is the people’s opportunity to respond because the future of the institution of marriage is too important to not have a public debate. … Marriage, the family and our children are too central to a healthy society to not fight for what is best. I realized that fact early on and that is why I lead the charge against some in my own party in 2004 to ensure the Federal Marriage Amendment received a vote and I continue to stand for marriage, for families, for freedom.”

Damn, what a miserable human being. It’s impossible not to editorialize here. Such an idiot. Santorum has such a poor grasp of marriage and how marriage equality impacts straight couples (it doesn’t) that a Christian minister recently took him to task and explained how that marriage thing works.

First off, the whole, ”unelected judges” bit is just stupid. The Supreme Court is unelected for good reasons. There are major disadvantages to making the judicial branch susceptible to political forces. On local levels, elected judges tend toward corruption and pandering. Judges shouldn’t be involved in the same games as politicians. Santorum used this line specifically to make the Court appear scary and undemocratic. Thing is, Santorum didn’t complain when they ruled on the Citizens United decision, or Bush v. Gore – two decisions with openly partisan and political motivations.

Twice in the above statement, Santorum mentions public debates. Here’s the thing; Issues like this generally don’t come up to the Supreme Court until public opinion reaches a near-consensus. The public debate has largely been decided since 2010. If majorities still opposed marriage equality, the Supreme Court would likely not have accepted the case in the first place.

Scott Walker, current Governor of Wisconsin:

“I believe this Supreme Court decision is a grave mistake. … As a result of this decision, the only alternative left for the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage.”

The GOP pushed for an anti-marriage equality amendment a little over a decade ago and it went nowhere. Considering popular support for marriage equality is now well over 50%, such an attempt would likely fizzle faster than 10 years ago. This is a non-starter and a waste of time.

Rick Perry, former Governor of Texas:

“I am disappointed the Supreme Court today chose to change the centuries old definition of marriage as between one man and one woman. I’m a firm believer in traditional marriage, and I also believe the 10th Amendment leaves it to each state to decide this issue. I fundamentally disagree with the court rewriting the law and assaulting the 10th amendment.

So Rick, are you saying the 14th Amendment doesn’t apply? What about the Equal Protection clause? That was the whole point of this case. Are you going to ignore that part?

Also, once again, the Supreme Court did not change the definition of marriage. They acknowledged that millions of gay Americans should be allowed to receive the same benefits of laws that millions of others already had. Any specific religious ceremonies would be unaffected.

Carly Fiorina, former CEO of Hewlett Packard:

“I do not agree that the Court can or should redefine marriage. … Moving forward, however, all of our effort should be focused on protecting the religious liberties and freedom of conscience for those Americans that profoundly disagree with today’s decision.”

Again, the Court has not “redefined marriage.” That phrase is purely political propaganda.

As far as protecting religious liberties – well, sure. Religious liberties are protected by the Constitution. Nobody has stated people have to agree with the Supreme Court’s ruling. Individuals have the right to think that gay people aren’t people, and therefore deserving of the same rights and privileges as everyone else. They can do more than think that. They can say it, too. But that’s where it ends. Individual citizens cannot restrict LGBT individuals from the same marriage licenses that same-sex couples enjoy. But if that’s a requirement of one’s religion, than that brings up many far tougher questions.

Moving beyond current Presidential contenders, other prominent figures made some interesting comments about the decision.

Antonin Scalia, current Justice of the Supreme Court, stated in his dissent:

“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.”

“The opinion is couched in a style that is as pretentious as its content is egotistic.”

“Really? Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.”

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Okay, Antonin. The first statement quoted above actually is an argument, albeit an easily punctured one. The second is just a rehash of the stuff that people like Cruz and Huckabee blurted out after the decision. The other statements, like most of his dissent, just appear to be a long, angry diatribe. I’m somewhat surprised it didn’t end with him yelling at those damn kids to get off his lawn.

Let’s address the first one, though. Scalia seems to believe that the Fourteenth Amendment applies to slavery alone, and does not allow for further expansion of equal protection under the law. Since marriage equality didn’t exist in 1868, it shouldn’t exist in 2015. Yeah. Well, the holes here are pretty obvious, even to someone who isn’t a great Constitutional scholar.

Let’s take Loving v, Virginia, from 1967. In 1958, the newly married couple were arrested in Virginia under anti-miscegenation laws. After years of appeals, protests, and conflict, the aptly-named Loving couple fought their way to the Supreme Court. In a unanimous decision, the Court voted 9-0 that the Fourteenth Amendment did indeed apply to interracial marriage.

Chief Justice Earl Warren, writing the opinion for the court, noted:

“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”.

By this rather unassailable logic, everything he stated works perfectly for same-sex couples. Now, we in America are beginning to recognize that sexual orientation has faced discrimination and marginalization as well. The history has been different from racial injustice, and certainly not on the same scale, but many of the implications of law are similar. Justice Scalia fails to recognize this.

Just as universal marriage equality didn’t exist in 1868, universal recognition of interracial marriage didn’t exist until 1967.  Is Scalia going to argue that the Loving decision was incorrect as well?

He also fails to recognize that the Fourteenth Amendment – like every other one, for that matter – has been reassessed over the years as our culture shifts, and new understanding of humanity appears. The strict “originalist” has been observed making assumptions about the original intent that seemed to fit in with his personal ideology more than actual history. His rather imaginative retelling of the 2nd Amendment in the much lambasted Heller decision of 2008 is a great example of this.

Scalia seems to be mostly motivated by bitterness over a changing political, cultural, and social landscape. His refusal to admit that the Fourteenth Amendment can apply to more issues than simply slavery is just one of many examples of this.

Whew! Scalia was likely the most energetic of the dissenters. His fellow conservatives on the Court – Justices Alito and Thomas, and Chief Justice Roberts – all concurred with his opinion, though none exhibited as much frustration as the Hon. Justice Scalia.

It wasn’t just individuals in on the dumb reactions. Several state-run institutions all declared their intent to defy the SCOTUS ruling.

The Alabama and Louisiana Supreme Courts both advocated forms of nullification. The stated they would block attempts to enforce marriage equality within their state. This of course, is illegal and unconstitutional.

A county clerk in Texas has outright refused to grant marriage licenses to same-sex couples.

Ken Paxton, the Texas attorney general, has backed up the clerk.

Several clerks in Kentucky have also done the same.

Counties in Kentucky, Mississippi and Alabama have stopped issuing marriage licenses altogether.

Back to some of the Presidential contenders, Marco Rubio, Ben Carson, John Kasich, Chris Christie, Jeb Bush, and Lindsey Graham all pretty much said variations of the same theme. They acted as the “moderate voices” when they stated they disagreed with the decision, but they wouldn’t fight it.

Then they made sure to emphasize their support for religious freedom. As if religious freedom was threatened by one group of marginalized people gaining a measure of equality.


Okay kids, let me explain this. I’ll try to keep it clear and concise. Religious freedom in this country means that the government cannot restrict, aid, or interfere with religious practices. In addition, the government is obligated to protect the rights of those who engage in religious practices, including from each other, if necessary.

However, like every other right, there are obvious limits. In this case, the freedom of religion stops when it interferes with the rights and lives of others. If your religion compels you to restrict someone else’s life – for example, fighting against consenting adults marrying each other – than your freedom is limited at that point. You’re also not allowed to murder, rob or rape other people. There are no absolute freedoms, especially when they come to inhibiting the freedoms of others.

In the case of Obergefell v. Hodges. the Supreme Court acknowledged that same sex couples are afforded the same access to marriage that straight couples enjoy, validated by the Fourteenth Amendment. This ruling did not reduce or limit any rights of heterosexual couples. It also did not reduce or limit the rights of Christians to worship as they choose.

It is possible, even likely, that conflicts will come up over time. Some churches are concerned that they will be forced to provide marriage services for same-sex couples. So far, this fear seems unfounded. The First Amendment provides some protection in this situation. As noted above, churches aren’t required to perform any ceremonies if they don’t want to. They aren’t government institutions providing public services.

Other disputes may arise over time. Use of church facilities, associations with church-affiliated groups and non-profits, and so on. Most likely, like the religious opposition to the Loving decision, these disputes will gradually fade with time as our culture shifts. But in the meantime, there will probably be messy battles, acrimony, and really stupid statements by political figures. Basically, life will continue as normal. The only difference is that gay people are legally a little closer to being treated as, you know, actual people. It’s just a shame that so many people are still bothered by this.

I’ve noted this several times in the above paragraphs, so forgive the repetition. This is vital, though. The Obergefell decision means that gay people can now apply for marriage licenses in all 50 states. That’s it. It’s a function of the government, not of religious institutions. The only people freaking out about this are those who don’t like the idea of the separation of church and state. And those are the people who have no business running the government.

Those who are religious should not fear this decision. Neither should heterosexual couples. For them, nothing has changed. Another group gets to join the club. That’s it. The only “threat to liberty” are those who hide behind religious extremism to try to deny rights and privileges to consensual gay couples.

This really is simple. It’s a shame people are making it more complicated than it needs to be. Some of the opposition is due to fear, some to insecurity, some to mere political pandering. But none of it so far has been valid, either ethically, morally, legally, or historically.

The world is changing. In this case, for the better.

As always here are additional links to more eloquent writing on this topic:










About hbreck

Writer, debater, contrarian, storyteller, occasional troublemaker. I'm mostly just making things up as I go.
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