Two days ago the U. S. Supreme Court heard arguments in a case that may well result in the broadest and most definitive decision establishing the constitutional right of same sex couples to marry. Notwithstanding opposition based on religious beliefs, the Court should expand its previous decisions and resolve conflicting court of appeals opinions in favor of guaranteeing the right of two people of the same sex to marry throughout the nation.
In agreeing to hear the case, known as Obergefell v. Hodges, the Court took the unusual step of framing the two questions to be considered: “Does the Fourteenth Amendment require a State to license a marriage between two people of the same sex?” and “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?”
The relevant section of the Amendment provides no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The due process clause is generally thought to protect fundamental liberties and is thus broader than the equal protection provision.
It’s widely believed those who oppose same-sex marriage advance the proposition marriage is a sacred institution uniting one man and one woman, relying primarily on the Bible as the authority for that principle. According to a recent Pew Research Center poll, it’s true most opposition to gay marriage is religion-based.
However, analyses in the Washington Post and The New York Times of numerous legal briefs filed in the Obergefell case reveal much disagreement within religious organizations as to the basis for their opposition to marriage between same-sex couples. Some opposing briefs cite faith-based arguments and others claim secular reasons, such as the fact homosexual marriages don’t result in the birth of children. And numerous groups, including Christian and Jewish leaders, as well as 1,900 theologians, urged the Court to legalize same-sex marriage.
In 2013, the Court struck down the provision of the Defense of Marriage Act that describes marriage as between one man and one woman for federal purposes. It also upheld a challenge (on procedural grounds) to California’s Proposition 8 that banned same-sex marriages. Amazingly, since those decisions, the number of states in which such marriages are legal has increased from 9 to 37. And 63 percent of Americans now support gay and lesbian marriages, according to a recent CNN/ORC poll.
Stated bluntly, the right of same-sex couples to marry is a constitutional issue to be determined ultimately by the U. S. Supreme Court, not a religious question based on Biblical instruction or other theological doctrine. Nor should the issue be left to the determination of individual states.
The Supreme Court should settle the issue and declare the right to marry a fundamental liberty of gays and lesbians, just as it is of heterosexuals. Rather than a threat to the institution of marriage, the exercise of that right enshrines the commitment of all couples dedicated to a loving relationship, regardless of their gender preference.
Bo Statham is a retired lawyer, congressional aid and businessman. He livs in Gardnerville and can be reached at email@example.com.