Simon Says: The Supreme Court, Same-Sex Marriage, and the Fourteenth Amendment

The Supreme Court will be hearing oral arguments in April 2015 examining bans on same-sex marriage and states' requirements to recognize out-of-state marriages under the Fourteenth Amendment. The decision reached by the court will have implications for same-sex couples throughout the United States.

image credit: Huffington Post

    Every person who lives in the United States knows that same-sex marriage is one of those hot-button topics that can spark intense debates in the classroom and grocery store alike. Although there are far more than two sides to any issue, we've come to understand the two major players in this debate. Social Conservatives claim that traditional marriage has been, and should always be, the only definition of marriage. While, on the other hand, more Libertarian individuals fight for equal protection under the law. But we need to ask ourselves: What is equal protection mean, and what does it guarantee? Is this covered by the Fourteenth Amendment?

    Marriage is a fundamental right of living in the United States and therefore should be covered by the Constitution (given that it provides extra benefits and rights), but it is now up to pro LGBTQ supporters to prove this in court. Stepping away from typical rhetoric, let's take a closer look at the Fourteenth Amendment. This amendment is actually broken into five sections. Section 1 is the article of interest in same-sex marriage cases. Its ever-famous statement of "equal protection under the law" has been cited numerous times when defending same-sex marriage rights. In fact, it is now the centre piece of the latest court cases looking to legalize gay marriage nationwide. The case in question, DeBoer v. Snyder, will have its day in court this upcoming April where it will be presented before the Supreme Court of the United States (SCOTUS). The SCOTUS is predicted to release its ruling by early June. 

    Originally the case was formed by April DeBoer and her partner, who wanted to adopt their children as a couple. However as a lesbian couple under Michigan's state ban on same sex marriage, this was not possible. The couple was convinced to bring about their case with a number of other petitioners protesting the ban in Michigan. The couple did succeed in overturning the state ban but it was immediately appealed to the United States Sixth Circuit Court of Appeals where it was reinstated. So now, seeking another ruling in their favour, the attorneys of the case have appealed to the Supreme Court. So here we stand, on the cusp of an overturn or an upheaval.

    In their dissent, the Sixth Circuit cited a number of reasons for their ruling. Judge Jeffery Sutton, the presiding judge, expressed these views. Specifically, Sutton focused on possible social repercussions as the basis of his argument. He distinguished two possible ways on which the matter of same-sex marriage could be settled. First, he explains that the courts could decide this matter; ultimately this would end the discussion but may leave much unexplained and many people unhappy. Second, he suggests letting society as a whole culminate a solution for this matter. Sutton points out the possible distaste of a court ruling outweighs the benefits. However there have been cases where the courts have ruled on major social issues without intense upset. Does this invalidate Sutton’s response, or reinforce it? To answer this we must consult previous cases regarding marriage in the United States. For that we must go back to 1967.

image credit: NY TIMES

    The precedents of this case are perhaps the most controversial topic being scrutinized by both the public and politicians. The main argument is based on the ruling of Loving v. Virginia which struck down a ban on interracial marriage in the 1960s. Many scholars note the similarities between bans on interracial marriage of yesteryear to the curtailing of same-sex marriage today. The 1960 Loving argument used the equal protection clause to establish its ruling. Legal teams today believe they can accomplish the same with gay civil rights. Not all lawyers are so keen to jump on the “Loving Card” bandwagon, however. The late lawyer and supporter of traditional marriage David Coolidge sought to poke holes in the Loving argument. Coolidge points out what he believes are the fundamental fallacies in applying Loving to same-sex marriage. For the most part he cites the weakness of applying rhetoric as opposed to a direct analogy. That is, Coolidge purports that Loving, as it was during its historical period, was a triumph of marriage over racism. He goes on to say that DOMA—the Defense of Marriage Act, a controversial federal ban on same-sex marriage signed into law under the Clinton administration—was merely another protection of marriage from other “isms.” Although Coolidge does provide many legal cases within his argument, he fails in one regard. He ultimately uses rhetoric to dismiss rhetoric. This ad hoc fallacy backfires on his whole argument. The Loving analogy may stretch, at some extreme, very far, but this by no means invalidates the fundamental dispute underlying it. Marriage should be blind to any arbitrary characteristics between consenting adults.

    Arguments like Sutton’s or Coolidge’s are subtle to an extreme; they seem like compelling cases. Both argue that the court should not be the one to decide on social issues. Okay. Both think that society should take action in addressing their concerns over same-sex marriage. Okay, (…) but isn't the whole legal battle taking place a sign of society’s action? Certainly the number of cases attacking same-sex marriage bans are not simply the actions of a few with an esoteric agenda. Indeed, if we examine the case for same-sex marriage, this is certainly not a few people. Lawyers like Mark Strasser advocate for the jurisprudence of the Fourteenth Amendment. He cites that with the extension of marriage to same-sex couples comes the acknowledgement of having denied it to them in the first place. He discourages the exclusivity of special groups and treatment under the rule of law, and, additionally, seeks to erase the existing stereotypes of same-sex couples as enemies of the family model. 

image credit: Procon.org

    Indeed it is crucial to tackle the singling out of any minority. Cary Franklin addresses these exact issues in Marrying Liberty and Equality: The New Jurisprudence of Gay Rights. The cascade of numerous courts striking against sexual orientation-based discrimination is nothing if not a sign of a defining trend. However as opposition pushes against such laws the repercussions cannot be repudiated. To renege on such deals is harmful for the large volumes of couples who have established marriages and lives. Backing out just as same-sex marriage is gaining its deserved time in the limelight is dangerous. Not only does the establishment of a "sexual hierarchy" set back decades of activism, but it reinforces the closeted ideas of the past. Stereotypes are damaging to any minority. This includes the widely-perceived image of gays, lesbians, bisexuals, and transgenders as enemies of the family that has so-ruled humanity's past. Legislation must continue as an arbiter to dispel the half-truths and lies of the past. Equality has never been a question, but rather, has always been something that Americans (and others) understand as irrelevant of race, creed, religion, and other factors. The natural extension of true equality to other non-sequitur qualities is the duty of society. This must be insured to avoid falling into the traps of the past. Exclusion, restriction, and discrimination with no basis of infringing on others' rights has no standing in the United States. Only by understanding that the law is not a selective right can society truly declare equality. 

    So, we ask ourselves, does the Fourteenth Amendment apply in this case? Absolutely.