Obergefell V Hodges

 

As this post’s relevancy is contingent on my research project, I will be explaining my primary source, the reason why I chose it, and why this case in particular is a perfect representation of my proposed research question.

As a brief introduction, I will spend some time proposing my research question, its relevancy, and why I chose this particular Supreme Court case. Firstly, I am fascinated with the Constitution, its enumerations, and how it is applied to our lives today, given that it is over two hundred years old. Perpetual discourse and extensive journalism have, in recent times, attempted to discuss the two main modes of constitutional interpretation. A mode of interpretation known as originalism (not to be confused with textualism), which seems to be the only plausible mode as far as I’m concerned, instructs judges to interpret the Constitution and other legal documents through its original intent and purpose, through the perspective of an individual competent in language at the time of ratification or adoption. To expand on this further, I would like to detail the understanding of “purpose”  to an originalist. Purpose does not allow judges to interject their own personal views and biases into the Constitution, and steer it away from the Framers’ views in order to appease societal sentiments. Purpose, to an originalist, is derived from the context of the Constitution. Context, in turn, is composed of two devices which will help the reader understand the scope of the enumeration at the time it was ratified. The first device is understanding the meaning of a particular word under investigation, which shows itself through repetitive use in past times. The second device, and one that can help hint at the particular meaning of a word, is the grammatical structure of the phrase, as well as the words surrounding the one under investigation. As you can see, this work is very textually orientated. However, the other mode of “interpretation” is coined Judicial Activism. Judicial activism is effectively judges infusing their own views into the Constitution through their moral convictions and altering the meaning of particular phrases to suit their judicial agenda and derive a “purpose” from the Constitution. In no remote way is this a legitimate mode of interpretation, since it disallows the formation of any consensus in regards to interpretation, and it also allows judges the discretion to morph enduring legal texts that were never considered to be malleable. This brief and concise analysis led me to my research question, of whether the Constitution should be interpreted through the originalist perspective or whether it should be treated as a “living document,” as many claim it is. The Constitution itself is very detailed and descriptive, embodying a vast history that individuals spend their lives exploring. Because of this, I decided to focus on a Supreme Court case that explicitly shows the divide between the two interpretive methodologies.

The case that I have chosen as my primary source is Obergefell V Hodges, which decisively mandated that all states issue marriage licenses to same-sex couples, as well as recognize these licenses from other states as legitimate. The premise that the assenting judges based their opinion on is startlingly a perfect representation of judicial activism in motion. The assenting opinion of the court concluded that by the states refusing to issue marriage licenses to same-sex couples, that the state legislature is violating an individual’s autonomy, their inherent liberty under the Due Process clause of the Constitution, as well as an individual’s equal protection under the law. Even before I became interested in examining issues of Constitutional law, I never believed that these clauses within the Constitution applied to marriage, which has been a sanctimonious part of many religious groups, and has always operated under the stipulation that marriage is between a man and a woman. I do not intend to expand on the entire court case and the dissenting, originalist perspective, and if you are thoroughly interested in learning about this particular case, you can find the PDF online.

This first contingency one needs to understand is that the court itself is not a legislative body, and therefore has no expressed power involving itself in issues that do not pertain to the Constitution. This belief was in itself present in the case of Marbury V Madison, where the court’s role of judicial review was well established. However, even before the Constitution was ratified, the role and purpose of the court was clearly defined in the Federalist Papers. Federalist no. 78 states that the courts exercise “neither force nor will but merely judgement” (Found within dissenting opinion). Clearly the Founding Fathers, from this excerpt, did not intend for the court to actively participate in social controversies. This is exactly why Article I of the Constitution constructs a bicameral legislature and enumerates its designated and expressed powers. The legislature, as we know, is comprised of representatives of the people, and therefore they are constantly fighting to draft, pass, or deny legislation that benefits or adversely affects their constituency. These members of Congress are elected officials, and therefore can be removed through the democratic proceedings within our country. Supreme Court justices however, are unelected officials, who serve life terms, or until they choose to retire. Their expansive amount of time on the court affords them the substantial ability to critically affect the outcomes of paramount cases afflicting our nation and its people. The danger is clearly present. If judges do not express fidelity to the Constitution, they are in an extreme position of power to alter the state of our nation, and this is exactly what happened in Obergefell V Hodges.

The first principle to understand is that marriage is not listed as a right within the Constitution. Therefore, according to the 10th amendment, all powers that are not delegated to the United States will be reserved by the individual states and the people. Clearly, since marriage is not included within the Constitution, states can, through democratic proceedings within their borders, obtain, uphold, or alter a definition of what marriage is. This idea is fundamental to originalists. As the dissenting opinion stated, the court, in its decision to mandate all states to issue marriage licenses to same-sex couples, authoritatively denied any further democratic proceedings from occurring within the states and across the nation. The Founding Fathers did not include many controversial social issues within the Constitution, not because they didn’t acknowledge their existence, but because they wanted them to be decided through the democratic process. The dissenting opinion cited a prior remark by the court dealing with a similar case: “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” I think now it is appropriate to address the Due Process clause and Equal Protection clause, since the assenting opinion cited these protections.

The Due Process clause asserts that no person shall be deprived of life, liberty, or property without the due process of law. Similarly, the Equal Protection clause guarantees citizens the verbatim entitlement, being equal protection under established law. Firstly, the petitioners claim that the utterance of “liberty” in the Due Process clause implies a right to MARRY whoever they want to. However, the Framers of the 14th amendment didn’t consider marriage (same -sex marriage that is) at the time of ratification. Previous iterations within the Constitution stipulated that slaves whom escaped to free states must be returned to their masters. We know that the 13th, 14th, and 15th amendments were passed after the Civil War to guarantee all individuals (specifically African Americans) equal rights comparable to whites. Therefore, “liberty” seemingly signifies a right to locomotion, or movement, throughout the United States unobstructed by the government. Furthermore, “liberty” signifies a freedom from oppressive government, as we saw during the Revolutionary War. “Liberty” was never meant, or intended, to guarantee same-sex marriage, and it was never listed as an inherent right within the Bill of Rights. The process of a court deciding which rights are IMPLIED by a particular statue is of particular danger. In the case of Dred Scott V Sandford, the court invalidated the Missouri Compromise by decreeing that restricting the institution of slavery into new territories violated the implied rights of slaveholders. It is clear from this past precedent that fidelity to the text and its original meaning is imperative. To briefly address the Equal Protection Clause now. There exists no law prohibiting same-sex couples from being together, even in the most intimate of settings, and therefore it cannot be said that same-sex couples are being discriminated against. The state is not prohibiting same-sex couples from having a union. The state is simply retaining the traditional definition of marriage and its sanctity, which has remained steadfast over many millennia. Same-sex couples, therefore, are protected under the same laws as everyone else (Disclaimer: some may argue they are not protected under laws that afford married couples tax benefits and certain recognition. However, this is not the subject of the case at hand).

To conclude, this case excellently displays the two different philosophical methodologies that are currently in use among justices on the court. One methodology shows loyalty and a deep understanding of the text an its original intent, while the other retains an abstract, imaginative approach fixated on re-writing the Constitution and its enumerated values. This case, along with others such as Roe V Wade, demonstrate how powerful the court can be, and how it can instantaneously undermine all democratic proceedings and establish a supreme law of the land.

Word Count: 1625

Works Cited

OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. 103. Supreme Court of the United States. 26 June 2015. The Supreme Court of the United States, n.d. Web. 20 Jan. 2017. <https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>.