Obergefell’s outrageous omissions

Justice Anthony Kennedy’s landmark Obergefell v. Hodgesopinion is warm and compassionate in its language, resembling a Hallmark card more than the “fortune cookie” Justice Antonin Scalia accuses it of being. However, Kennedy’s opinion is frightening not just for what it contains, which is a sparsely-reasoned, rather warbly paean to the right of gay persons’ potential “loneliness” to trump millions of State voters’ opinions about whether to utterly redefine marriage. What the Obergefell opinion omits may be even scarier.

For one, it pays no attention to the suffering that same-sex or “gender-fluid” marriage and upbringing has caused, e.g., to children of same-sex or transgender environments who testified that that environment damaged them. Six of this author’s clients, Heather Barwick, Katy Faust, B.N. Klein, Robert Oscar Lopez, Denise Shick, and Dawn Stefanowicz, submitted three amicus briefs to the Court, testifying to the misery caused by an actively homosexual and/or transgender home environment and by the lack of a father or of a mother, including gender confusion, urges toward homosexual promiscuity or entering actual prostitution, etc. Given this damage to children, how could a State not be justified in letting voters decide whether to officially endorse same-sex marriage or not?

While Scalia may have briefly mentioned, during Solicitor General Donald Verrilli’s oral argument, that not all the evidence showed that same-sex parenting was trouble-free, Scalia did not go into details. As for Michigan’s lawyer John Bursch, his oral argument, among its other flaws (such as claiming marriage did not grant dignity! etc.), mentioned nothing about the six same-sex-raised children’s damaging testimony.

Nor did the Court’s June 26 opinion, even the dissents, mention anything about that testimony. Insult to this author’s clients aside, it is very strange that the six adult children’s harrowing accounts of suffering, and of being criticized by same-sex-marriage activists for speaking out, was tossed by all sides down the “memory hole”. Kennedy’s opinion seems compassionate on the surface to the children of same-sex couples, but it was not compassionate to, or even cognizant of, those children who said that their experiences were damaging.

—Here is a post-case statement from the six amici:

“Children of same-sex couples had serious standing in this case. Gay couples themselves might get a marriage rather than a civil union, but they are nonetheless able to get a divorce and change their identity to heterosexual again, if they feel so inclined. The right to a relationship with one’s own mother and father is more universal, lifelong, and fundamental than the right to marry, yet the Court has given an adult class the latter at the expense of the former for a group that truly needed equal protection and due process (children). The complete disregard for the research and testimony from children of gays in both the majority opinion and the dissenting opinions is as chilling as it is ominous. The Supreme Court will be haunted by the grievances of citizens forcibly estranged from their parents and deprived of their heritage because of this ruling, for decades if not centuries to come.”

Another omission was that Obergefell’s case posture omitted the voices of the 1st, 5th, 8th, and 11th Circuits, since Obergefell, or similar cases, could have been delayed by the Court’s waitlisting the cases until those four Circuits weighed in on same-sex marriage. As it was, three Circuits stayed their cases, and the 5th didn’t even bother to issue a stay, they just did nothing. What was the Supreme Court’s rush?

Some other omissions were whether the precedents of Ballard v. United Statesand Potter v. Murray Citywere overturned or not. In the former, the Court said that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both.” How does this comport with Obergefell’s gender-erasure in the matter of marriage? And in Potter, polygamist Utah policeman Royston Potter, who, by parties’ stipulation, had treated his wives and children quite well, was dismissed from his job for his polygamy, and the Court let that stand by not granting certiorari. Potter risked his life for his community, like a soldier. However, the Obergefell opinion says that one plaintiff, a soldier, deserves same-sex marriage because of his sacrifice for the Nation. Then why did policeman Potter not deserve polygamy for his sacrifices?

(Although a motion for rehearing Obergefell would likely be futile, a motion for clarification on some of the above issues might at least help the Obergefell opinion make more sense.)

Speaking of polygamy, which Chief Justice John Roberts’ dissent accurately noted the majority opinion justified as well: if some committed, loving polyamorous citizens decide that they too should have a “fundamental right to marry”, and file suit in the future, then, if the Court has even one different member at that point, there could be a fascinating revisitation of Obergefell, and maybe even of United States v. Windsor.

(A constitutional amendment to allow states to decide on same-sex marriage is unlikely right now. However, if the “polygamist lawsuit” scenario happens, and there is at that point accumulated evidence of damage from same-sex marriage, e.g., if there is snowballing testimony about damage children suffer from lack of a mother or father, or if various states abolish state marriage altogether and the populace suffers from that, it is possible that mandatory national same-sex marriage may be less permanent than many people expect.)

And despite the respondent States’ oral argument over-relying on the reed-thin assertion that “Redefining marriage may somehow influence people not to get married as much”, the written briefs had many ideas that the Justices could have looked to if they really wanted to be seen as doing a fair, thorough job. Besides the briefs of this author’s clients, there were also briefs from ex-gays who showed that sexual orientation is not immutable, from homosexual-leaning men in happy heterosexual relationships, and from statisticians who showed that same-sex marriage had had deleterious effects in various countries.

This author’s own brief mentioned that the “diversity is a compelling state interest” criterion from Grutter v. Bollingershould logically also be applicable to gender-diverse marriage, and also that same-sex-marriage supporters themselves had admitted, in different places: that same-sex marriage might channel bisexuals away from heterosexual marriage and affect the fertility rate; and that children of same-sex couples statistically tended to have more homosexual experiences than average, which could rationally influence fertility and AIDS rates.

However, despite this plethora of information, five Justices (actually, all the Justices, in the June 26 opinion and dissents) largely ignored it and stuck to more theoretical or lyrical (waxing poetic about loneliness, dignity, etc.) matters. This “dehumanization” of the process, with an overfocus on the theory of the Lochner v. New Yorkcase, or on emotional abstractions, etc. instead of on useful specifics, including eyewitness testimony on human experiences, provided by Obergefell amici, did no one proud.

—A brief observation on Obergefell’s potential impact on foreign nations: the opinion may inspire some same-sex couples in other countries, but it may also make nations where sodomy is illegal leery about ever legalizing it at all. I.e., if legalizing homosexual intimate relations will inevitably lead to same-sex marriage—as Lawrence v. Texashas led to Obergefell, despite Lawrence’s famous, now-outmoded claim that Lawrence did not legitimate same-sex marriage—, are those nations really going to want to legalize sodomy now?

By contrast, Croatia legalized homosexual relations back in 1977, well before Lawrence; but Croatia still bans same-sex marriage. They do allow a “life partnership”, something like a civil union. This is a relatively moderate solution, which our Supreme Court might have followed instead of mandating national same-sex marriage. But after Obergefell, nations may fear that a “Croatian compromise” will not happen, but rather, inevitable same-sex marriage must occur if there is any liberalization towards gays or sodomy at all. This may cripple liberalization.

As a final note, one wishes the Obergefell victors, and everyone like them, well. In a world where ISIS is pushing gays off buildings, America is resolving gay issues civilly, through the courts. And one hopes there is no Charleston-style physical violence, or other violence, in America after the stupendous legal change of Obergefell, violence either by the losing side, or by winners who feel “pumped up” and want revenge on their “oppressors”. There has been enough violence already, of an intellectual sort, by the Obergefell opinion’s massive omissions, and the wrong or humiliation those omissions inflict on people or ideas that do not deserve it. Not only same-sex couples are capable of being humiliated or wronged, after all; and we the people and voters, in our democracy of fifty States, all deserve consideration and respect.