Every other Tuesday, we usually present you all with our opposing perspectives on a given political issue. But today, we will do something different and present you with our unified point of view. We chose to do so today because we hope to talk about an issue of utmost importance for our generation—an issue that can, and should, unite us rather than divide us along political lines. That issue is same-sex marriage, and specifically the court case that could make marriage equality the law of the land at last.
The case is Obergefell v. Hodges, which the Supreme Court of the United States heard one week ago today, and will officially decide upon at the end of their session this summer. The Supreme Court has already dealt with the issue of same-sex marriage in a limited way with two other cases, both in 2013. The first, United States v. Windsor, struck down the federal Defense of Marriage Act (DOMA) that had barred the federal government from recognizing same-sex marriages, and the second, Hollingsworth v. Perry, allowed a lower court’s ruling against Proposition 8 to stand.
But Obergefell has the potential to affect the legal status of same-sex marriage in this country in a much larger way. Though the District of Columbia and 37 states currently recognize same-sex marriages as equal to opposite-sex ones, the Supreme Court could strike down the same-sex marriage bans in the remaining 13 states and several territories through its ruling in Obergefell. The Court should do just that.
The main rationale for it to do so lies with the Fourteenth Amendment, which the pro-marriage-equality arguments in the Obergefell case rely on. Besides enshrining the idea of birthright citizenship into our Constitution, the Fourteenth Amendment—one of the three ratified in the wake of the Civil War—includes two clauses that the decision in the Obergefell case will likely hinge upon. These are the Due Process and Equal Protection clauses, and regardless of which proves more weighty in the final decision, overturning restrictive state definitions of marriage on the grounds that they violate either clause makes legal and rational sense.
The Equal Protection clause provides perhaps the more obvious route by which the Court could strike down such restrictive laws. Current law makes marriage an incredibly beneficial practice, both economically and otherwise. As such, treating long-term, committed relationships between people of the same sex—marriages in all but name—differently than such relationships between people of the opposite sex does violate that clause; doing so amounts to the federal government failing to ensure that such relationships (and, by extension, the liberties of the people in them) are protected equally under the law.
Much stronger, however, is the case that bans on same-sex marriage violate the Due Process clause of the Fourteenth Amendment. Chief Justice Earl Warren’s Supreme Court, in 1967’s Loving v. Virginia, held that a basic (civil) right to marriage exists for all people—meaning that bans on marriage between same-sex partners deprives them of that right. A violation of that sort violates due process, just as laws against interracial marriage did until the Loving decision.
But while the Constitutional case for same-sex marriage is clear, opponents of marriage equality still try to condemn what they see as violations of morality or tradition.
Some critics of marriage equality argue, for instance, that same-sex marriage threatens our religious freedoms. Recently, Tony Perkins, President of the Family Research Council, wrote that if the Supreme Court legalizes same-sex marriage, then churches will lose their tax-exempt status. His logic holds that marriage equality would cause the federal government to fine churches that do not perform same-sex marriages and revoke their tax exemption. Of course, this ploy is nothing more than a scare tactic to convince people that supporting same-sex marriage will end religious freedom as we know it in the United States. Indeed, no evidence exists to support Perkins’ claim: same-sex marriage is legal in dozens of states, and not one religious institution has had to shutter its doors as a result of people of the same-sex marriages earning legal recognition.
Moreover, opponents claim that marriage is for procreation and should not be extended to queer couples because they cannot produce children by themselves. This argument has several fallacies. First, if we limit marriage to only those that can procreate, we should not allow elderly couples or infertile couples to marry. Second, no one has the right to determine the meaning of marriage and its purpose. The claim that marriage is meant for procreation is rooted in biblical text. Religious texts do not govern this country. In addition to the First Amendment that guarantees the freedom of religion, one of our founding fathers, President Adams, declared in the peace treaty between the United States and Tripoli, “… the government of the United States of America is not founded on the Christian religion…” There is no national religion for this country. Americans are entitled to their religion, but not entitled to impose their beliefs upon anyone else through the law.
Over the past decade, millions of Americans have seen how the differences between queer and heterosexual people have little moral or rational weight—and that both sets of people should therefore be treated equally in the eyes of the law. Even President Obama, a former opponent of marriage equality, has realized this, saying in his Second Inaugural Address that “…if we are truly created equal, then surely the love we commit to one another must be equal as well.”
Marriage equality gives people freedom at no cost to others, and now is the time for the Supreme Court to bring marriage equality to everyone in the United States.
Contact Johnathan Bowes at jbowes ‘at’ stanford.edu and Matthew Cohen at mcohen18 ‘at’ stanford.edu.