Today, the day after the Supreme Court upheld the basic funding mechanism of the Affordable Care Act, it decided to acknowledge that equality before the law means same-sex marriage is the law of the land. In a 5-4 decision, the Supremes over-ruled a Sixth Circuit decision that held only heterosexual couples could enter into such a contract. The whining from the right has already begun, and the decision of Obergefell v. Hodges will be hated as much in those circles as Roe v. Wade. Still, a constitutional amendment is now required to undo this. The great pity is that a decision about equality before the law was not 9-0.
Writing for the majority, Justice Anthony Kennedy stated,
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be-come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
That’s dreadfully romantic and shamefully ignorant of historical fact. Marriage is not the unchanging social institution that rightists say it is. Divorce was once unheard of, and polygamy is the norm in some societies. Nor, from the state’s point of view, is marriage a union of soulmates. It’s a contract. When deciding what marriage is in a civil sense, one only needs to see what happens in a divorce. Property is divided and arrangements made for the care of children, if any. Those are the only interests of the state.
Study after study has shown that same-sex couples are as good at raising children to be responsible adults as heterosexual couples. And when comes to dividing property, same-sex couples are as petty and greedy as straight couples. The state has no compelling interest, therefore, to deny such couples the right to enter into a contract about property and kids.
While the complaining will continue, the Republicans have been taken off the hook by the Supreme Court. They can rail against it all they want, and raise funds from bigots by doing so, but the votes to amend the Constitution to undo Johnson aren’t there. They are now in a rather comfortable political position, being able to complain about it without having to actually do anything. “I personally oppose the decision, but the matter has been settled” is a statement that let’s them move on from a vote losing proposition.
That is not to say the opponents of the decision are going to give up. There are ways they can inhibit the exercise of this right, claiming matters of conscience allow various officials to deny the required paperwork, etc. However, that is a false premise. If a job requires one to act contrary to one’s conscience, the only honorable course is to get a different job. Yet, the shenanigans that have made abortion a right in theory only for many women may well turn up on this issue as well.
That said, the United States of America this morning is not the country it was at sunset last night. It’s better.