The Supreme Court on Sex, Obscenity, and Marriage (Part IV)

In the 2003 case Lawrence v. Texas, the Court overturned Bowers and outlawed all homosexual sodomy laws in the 13 states that still has such statutes. Justice Anthony Kennedy wrote the majority decision saying sodomy was protected through the right of privacy (Griswold) obtained via the due process clause of the Fourteenth Amendment. Kennedy described the “right to privacy” found in Griswold as “the beginning point” in the evolution of concepts found in Lawrence. Sandra Day O’Connor voted with the majority but felt the Texas law violated the equal protection clause of the Fourteenth Amendment. Justice Clarence Thomas in his dissent used the same argument as Justice Potter Stewart in his dissent of Griswold: “it is a silly law, but still constitutional”. Justice Antonin Scalia in his dissent proclaimed many of the arguments used by the majority opinion could be used to overturn Roe v. Wade. The Lawrence precedent led to other sex cases on consensual incest, fornication, and consensual statutory sex decided in state courts. Remember the “Slippery Slope” warned by Justice White in Bowers? He was right, the Lawrence ruling opened the door for people trying to find a “constitutional right” for sleeping with their sister or under aged students. These sex acts may be taboo in American history or tradition, but that has not stopped the Court in past to find these types of issues constitutional. Based on Lawrence, and the right to privacy, it seems any act of sex is Constitutional. Once again, the right of privacy is a broad and ambiguous term that basically has no limits and the Court has failed to set any standards on the meaning of privacy.

The 2013 case United States v. Windsor overturned the 1996 Defense of Marriage Act (DOMA) on the basis of the Fifth Amendment’s equal protection clause. DOMA defined marriage as a union between one man and one woman. Windsor was married in Canada with her partner but their marriage was not recognized in the United States. After Windsor’s partner died, she owed a huge estate tax that would have been much less if the Federal government recognized her marriage. Antonin Scalia in his dissent claimed that the Supreme Court did not have jurisdiction to review the case nor the power to invalidate a democratically enacted law. Scalia also argued that the majority opinion is wrong in assuming that the Court has the final say on federal government laws. Alito once again argued that same sex marriage is not deeply rooted in American tradition to qualify as a substantive due process right. DOMA was merely a definition of marriage as being between one male and one female. Marriage is the cornerstone of all life on earth.

The landmark gay marriage case in 2015 was Obergefell v. Hodges. The Court ruled that gay marriage was legal based on both the equal protection and due process clauses of the Fourteenth Amendment. The case was decided by a 5-4 decision with the same result as United States v. Windsor (Same Justices concurring and dissenting). All states now have to issue same sex marriage licenses and recognize all same sex marriages. The majority decision cited Griswold’s right for privacy; Loving v. Virginia that provided the right for biracial marriages; and Lawrence v. Texas that provided the right for homosexual sodomy. Chief Justice John Roberts wrote the dissenting opinion and said that the majority decision is based on moral convictions and not the law. He also argued that the majority opinion opens the door for the legalization of polygamy and the decision will have consequences against religious freedom. Roberts further argues that the right to privacy is not at issue since gay behavior is not subject to government intrusion or punitive action. Justice Samuel Alito wrote a dissent citing Washington v. Glucksberg which states the due process clause only protects values or traditions that are deeply rooted in American history. Justice Clarence Thomas states the only liberty protected by the due process clause is that from government restraint and not a government entitlement such as a marriage license. Justice Antonin Scalia argues that by deciding gay-marriage, the national democratic process has come to a halt. The Court decision wiped out hundreds of statutes and laws in all 50 states. Most landmark civil-rights issues are decided by amending the Constitution: Slavery or women’s right to vote. Is it right to consider gay marriage as being the same thing as traditional marriage? An apple and orange are both types of fruit but they are not the same or equal. Gay couples can adopt and raise a family, but not in the traditional sense of childrearing. Citing Loving makes little sense because theirs was a traditional marriage. Citing Griswold makes little sense based on Roberts point and the fact that marriages are not private, they are open for all to see with a government record. And citing Lawrence makes no sense because single couples can partake in sex just as homosexual partners partake in sodomy. By changing the gender clause in the definition of marriage it opens up the argument for changing the number requirement of 2 in the definition of marriage or even that marriage has to be between humans. Does a marriage between 5 people require equal protection under the law or does a dog require equal protection under the law for being wed to its owner? It is a “slippery slope” when the Court feels compelled to overstep its bounds of the Constitution and interfere on state matters.