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Constitutions and new understandings of human condition

Sunday, July 12, 2015
Douglas Mendes

Since traditionally only members of the opposite sex exchange marital vows with God as their witness, and holy texts do not provide to the contrary, there is the strong religious belief that God has set his face against marriage between two men or two women.

For many people, though, marriage is first and foremost the public manifestation of their shared love and the commitment they make to each other to be loyal and faithful and to face the challenges of life as one glorious unit. Justice Kennedy, writing for a majority of the United States Supreme Court, put it so elegantly: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still alive there will be someone to care for the other.”

The message sent loud and clear by the judges who joined Justice Kennedy in giving constitutional recognition of the right of same-sex couples to marry, is that such primordial emotions are experienced just as deeply by gay men and lesbian women and are equally deserving of validation.

Marriage also has significant civil consequences. Spouses enjoy taxation benefits; the law provides for spousal rights in inheritance; the husband or wife of a citizen may be automatically entitled to residency or citizenship; the law of evidence protects marital confidences; to name just a few. To the extent that these privileges are reserved under the law to heterosexual partners, any law denying same-sex couples the right to marry violates the right to equality, the Supreme Court held. The denial of equal access to state benefits serves only to “disrespect and subordinate” gays and lesbians. Similar arguments led to the earlier striking down of laws which outlawed marriage between people of different races.

The majority of the Supreme Court also found that the ban on same-sex marriage violated the right to liberty. A similar finding had also been made earlier in relation to bans on interracial unions. The court on that occasion held that the right to marry is “one of the vital personal rights essential to the orderly pursuit of happiness by free men” and therefore could not be denied people who happened to be of different races. The right to choose who one should love and spend the rest of one’s live with “is inherent in the concept of individual autonomy” and “is among life’s momentous acts of self-definition.” All of this, the Supreme Court found, is as true of people of different races, as it is of people of different sexual orientation.

The court made clear that nothing it said was intended to disparage the religious or philosophical beliefs of those who considered marriage to be the preserve of heterosexual couples. Religions remain free to refuse to marry gays and lesbians under religious rites. It is the State ban on same-sex marriage which was declared unconstitutional. 

It is noteworthy that the four justices who issued their strong and sometimes vituperative dissents did not utter one word which called into question the respect for people of different sexual orientation which so obviously fuelled the majority’s ruling. In fact, Chief Justice Roberts closed his opinion thus: “if you are among the many Americans of whatever sexual orientation—who favour supporting same-sex marriage—by all means celebrate today’s decision...Celebrate the opportunity for a new expression of commitment to a partner.” 

Rather, the dissenters were all careful to chastise the majority entirely on the basis that they were arrogating unto themselves law making power. The decision whether the right to marry should be extended to same-sex couples, they declared in unison, was reserved for the people acting through their elected representatives. As the Chief Justice was at pains to point out, the majority seized for itself “a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.” What he considered a usurpation of the democratic process was all the more egregious because marriage has for eons been considered the union of a man and woman. Such a historic change in a time-honoured institution should be made, not by five unelected judges, but by the representatives of the people.

The proper role of judges in the development of fundamental rights has long been debated. It is instructive to recall that even when American judges first asserted the duty to strike down laws which were inconsistent with the Constitution, they were subjected to similar accusations of overreach. There is of course an ingrained tension created when unelected judges invalidate laws passed by the representatives of the people. But, this is an unavoidable consequence of the creation of a bill of rights which is declared to be supreme law. It falls to judges to interpret the Constitution and to provide flesh to the bare bones of rights expressed in the broadest of language.

Moreover, the existence and protection of fundamental rights by their very nature cannot be made subject to the whims and fancies of the majority which happens to wield executive or legislative power. As has been pointed out frequently, “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Otherwise, they would be denuded of their “fundamental” status. 

As regards the complaint that the majority was changing long-standing arrangements, there was a ready answer. According to Justice Kennedy: “The nature of injustice is that we may not always see it in our own times…When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Constitutions are living instruments and are expected to be interpreted in harmony with new understandings of the human condition. The recognition of the right of same-sex couples to marry is in full accord with these basic principles.


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