Constitution vs Conservative Expectation

Image credit Steve Petteway, Collection of the Supreme Court of the United States - Roberts Court (2010) - The Oyez Project

     Following the pair of historically significant Supreme Court this past week, Conservatives across the country reacted by claiming that the Constitution was ignored or subverted.  This is, in fact, a common response when a Federal court’s decision runs counter to their viewpoint. 

     The idea that the ruling that centers on affirming the 14th Amendment to the Constitution’s guarantee of equal protection is somehow ignorant of the Constitution is a stretch at best and a boldly blatant lie at worst.

     Specifically, the Supreme Court’s decision in Obergfell vs Hodges [1] relates to and relies upon Section 1 of 14th Amendment [2], which is as follows:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

     What this means is that no state can deny one American or one group of Americans the rights that are protected for another [3]. This matter has not only been clearly established but has been repeatedly upheld and reaffirmed by court precedent. From 1873 to present day, [4] the Supreme Court has ruled that “separate but equal” is violation of the Constitution. Two of the most notable cases are Plessy v Ferguson [5] regarding segregation of passengers on train cars and Loving v Virginia [6] challenging the ban on interracial marriage – a case that was clearly used as precedent for the 5-4 ruling in favor of marriage equality for LGBT Americans.

      To hear Conservative politicians and pundits tell it, the Supreme Court actually went against the Constitution in this decision and decided the case based on their own political viewpoints rather than on the merits of the case and the details of the issue itself.  This flawed view seems to come from one of three different beliefs regarding how the Constitution, the separation of powers and the Supreme Court actually function.

      The first argument and most common argument is that this decision tears apart the 1st Amendment’s legal protection to freedom of religion:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” [7]. This viewpoint hinges on the idea that allowing two consenting adults equal right to marry regardless of gender somehow means that those of the Christian faith who disagree with this would be forced to participate or perform these marriages in their own houses of worship, or that those of faith would be persecuted in some other way.

      Refuting this argument is simple enough, because any move to force Christians or any other faith to carry out a marriage or wedding ceremony in their church that goes against their views would be just as much of a 1st Amendment and 14th Amendment violation as banning marriage equality was.  Requiring a priest or preacher to perform a same sex union in a church would raise the faith or lack thereof of the couple getting married above that of that church’s parishioners. Such a move would certainly result in a lawsuit where the decision would be in favor of the church in question.

      Secondly, Conservatives argue that the court ignored the 10th Amendment [8][9] in making this ruling; that the decision regarding marriage rights and protections should be left to each individual state. This argument is frequently made when Conservatives feel or want to make their base believe that the Federal government has overstepped its boundaries. This is problematic in that those boundaries are imagined based on a misinterpretation of the intent by the framers of the Constitution.

      Conservatives by and large hold fast to the belief that the 10th Amendment was intended as a check the Federal government’s powers. Anything that has not specifically been outlined in the Constitution as a Federal power belongs to the States. This is referred to as a Strict Constructionist viewpoint [10]. This is myopic because it doesn’t take into consideration the founders intent in how the document is worded. and thus it is an exceptionally flawed way to form one’s interpretation. 

      Additionally, sections of the Constitution that appear earlier than the 10th Amendment contradict this idea.  The Supremacy Clause [11], the Necessary and Proper Clause [12] and the General Welfare Clause [13] all contain language that speak to an intent that the Federal government have much broader authority than could be specifically outlined in the text.  In fact intent versus construction played a large part in the Supreme Court’s upholding the Affordable Care Act for a second time as well in King vs Burwell [14].

      Finally, the third argument that is that the Supreme Court contravened the will of the people in the states where the citizens passed amendments to the State constitutions banning marriage between same sex couples. This is probably the weakest of the arguments. The idea that matters of civil rights and the protection of them should be left up to a vote by the majority is patently absurd and almost insulting. The majority will almost always oppress the minority. This country’s history alone has several obvious instances where this has failed miserably. Key among them is the previously mentioned case overturning bans on interracial marriage, Loving v Virginia [6].

      Know that if you hear one of these arguments being made by Conservatives it’s because many of them know they are once again on the wrong side of history regarding a massive societal shift on a social issue.  Many know they have no hope of actually reversing this progress. A Constitutional Amendment overturning the Supreme Court has little to no chance of passing both houses of Congress with a two-thirds majority when Congress is so divided. Their only goal in using these arguments is to mislead and divide.

     The 14th Amendment is clear. No American shall be denied equal protection under the law by the states. The truth is this decision correct, Constitutional and fair.  Marriage between two consenting and loving adults is now a protected right. What really irritates Conservatives in this case is not that the Supreme Court ignored the Constitution. Their issue and concern is that popular opinion nationwide is against them on this issue. Conservatives are concerned that this case will be used as precedent to enshrine protection for LGBT Americans from other forms of discrimination that they remain subject to. In that they are absolutely right, it will be; and that is terrifying for them.

 References

 Image – The Roberts Court (2010) – The Oyez Project, Steve  Petteway, Collection of the Supreme Court of the United States /LINK/

 [1] Obergfell vs Hodges - SupremeCourt.gov PDF /LINK/
[2] The 14th Amendment - Cornell University Law School /LINK/
[3] Equal Protection: An Overview - Cornell University Law School /LINK/
[4] 10 Huge Supreme Court Cases About the 14th Amendment July 9th, 2014 - ConstitutionDaily.org /LINK/
[5] Plessy v Ferguson 163 U.S. 537 May 18, 1896 – Cornell University Law School /LINK/
[6] Loving v Virginia 388 U.S. 1 June 12th, 1967 – Cornell University Law School /LINK/
[7] Establishment Clause – Cornell University Law School /LINK/
[8] The Tenth Amendment – Cornell University Law School /LINK/
[9] CRS Annotated Constitution Tenth Amendment – Cornell Law School /LINK/
[10] Strict Construction – Law.com /LINK/
[11] Supremacy Clause – Cornell University Law School /LINK/
[12] Necessary and Proper Clause – Cornell University Law School /LINK/
[13] CRS Annotated Constitution Article I (General Welfare Clause) – Cornell University Law School /LINK/
[14] King v Burwell – SupremeCourt.gov PDF /LINK/