Ten years after equal marriage became the law of the land in Canada, our cousins to the south have finally stepped up to the plate and made it law there as well, or at least their Supreme Court has.
The vote was close: 5 to 4 in favour, with Justices John Roberts (Chief Justice), Antonin Scalia, Samuel Alito and Clarence Thomas dissenting. All four are strongly conservative.
In his dissenting opinion, Chief Justice Roberts wrote, "This court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us". He read this summary of dissent from the bench, something he has not done in the nearly ten years he has been Chief Justice of the Supreme Court, adding, "If you are among the many Americans – of whatever sexual orientation – who favour expanding same-sex marriage, by all means celebrate today’s decision, but do not celebrate the Constitution; it had nothing to do with it."
Justice Scalia said his concern was not so much about same-sex marriage per se as what he perceived as "this court’s threat to American democracy", despite a significant majority of Americans being in favour of equal marriage, and even going so far as to label the decision a "judicial putsch".
For those not familiar with the term, putsch means a violent overthrow of a government, and is most closely identified with the Munich "Beer Hall" Putsch of 1923, in which the fledging Nazi Party attempted to seize power by violence. Hitler was arrested, charged with treason, and sentenced to five years, but was out in nine months. It was during his time in prison he wrote his infamous Mein Kampf (My Struggle), the ‘bible’ of the Nazi Party, and formulated his plan to gain power through perverting and exploiting legitimate channels.
The National Conference of Catholic Bishops, predictably, also criticized the ruling, deeming it was "profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a marriage."
The ruling ends the bans against same-sex marriage that still existed in 14 states and, in essence, makes equal marriage legal on a federal and national level. Critics, of course, see this as interference in state rights, long a source of conflict between individual states and the Federal government. Similar concerns were frequently raised during the 1960’s Civil Rights movement, and racial desegregation of public spaces and schools.
The issue of equal marriage has been a long drawn-out affair in the United States, even more so than it was when Canada was going through it. Unlike Canada, individual states enjoy far more autonomy than our individual provinces and territories do; Canada has always been a more federalist country than the U.S. has, with defined, but limited, powers assigned to the provinces and territories and other powers held by Parliament and the federal government. Our system of government is far more centralized than that of our neighbour’s.
In the U.S,. some states legalized – or in some way officially recognized – either same-sex unions/domestic partnerships or actually instituted legal same-sex marriage, while other states did not; some even amending their state constitutions to define marriage as only being admissible between a man and a woman, thereby effectively rendering same-sex marriage illegal. The decision by the Supreme Court renders those rulings and state laws null and void.
Justice Anthony Kennedy, who voted in favour of equal marriage, stated the 14th Amendment to the Constitution of the United States requires states to allow same-sex couples to marry on the same basis as opposite-sex couples can.
The Amendment, adopted in 1868 following the American Civil War, addresses citizenship rights and equal protection under the law, and was originally drafted to address issues regarding former slaves who were now free, but did not have any of the same rights enjoyed by their former masters. It was bitterly contested at the time by southern states, which were eventually forced to ratify it in order to regain representation in Congress. The amendment limits the actions of all state and local officials, including those acting on behalf of such an official, in favour of federal jurisdiction.
The first section of the Amendment contains several clauses dealing with citizenship issues, due process of law, and equal protection under the law. It is the Equal Protection Clause, which states each state is required to provide protection under the law to all people within its jurisdiction, that formed the basis of the constitutional challenge launched by James Obergefell, heard by the Supreme Court, and upon which the majority opinion in favour of equal marriage was based.
As in Canada, concerns centering around freedom of religion and religious belief informed much of the opposition. However, also as in Canada, nowhere does the ruling in favour of equal marriage require faith groups to condone, let alone have to perform, same-sex weddings if doing so contravenes religious beliefs. The ruling deals only with civil marriage, not religious ceremonies which essentially ‘ratify’ civilly legal marriages, anyway. It is The State that makes a marriage legal, not the temple, synagogue, church or mosque that performs a marriage ceremony.
If one chooses to marry in front of a marriage commissioner, a judge (in the U.S.) or other civil officer mandated to perform marriages, that is a legal marriage. If one chooses and is able to be married by a priest, pastor, rabbi, or imam, that too would constitute a legal marriage, but only because the marriage is already recognized under law. A religious ceremony has no actual legal weight in and of itself, except within the faith group, such as within the Roman Catholic Church where, unless one is married ‘within the Church’, the Church does not recognize the marriage as valid. Likewise divorce, while civilly recognized as legal and binding, is not recognized as such by the Church; divorced Roman Catholic couples, for instance, cannot re-marry within the Church if the former spouse is still alive. In the eyes of the Church, this would be considered adulterous and bigamist. Other faith groups, such as the Church of England, Orthodox Judaism, and Islam, hold the same views.
With the ruling, handed down on June 26th, 2015, same-sex couples were immediately able to marry nation-wide – legally and valid – including in those states which had, up until the ruling, declared same-sex marriage invalid if not outright illegal. Those states included Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Missouri, Nebraska, North and South Dakota, Tennessee, and Texas: almost all southern states and all heavily Republican.