Fierce Conflict Within the Supreme Court Over Same-Sex Marriage

July 6, 2015 | Revolution Newspaper |


On June 26, the U.S. Supreme Court ruled by a vote of 5-4 that “...same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

This sweeping ruling took effect immediately. It was celebrated at Gay Pride events across the country. In states where same sex marriage had not been legal, couples lined up at county clerks’ offices to wed. As we said in Revolution last week, “the right to marry is a basic right. Denial of that right has, for hundreds of years in this country, essentially deprived LGBT people of their humanity. This has been an historic, horrible injustice and outrage. This ruling is long overdue, and something to celebrate!”

This ruling marked a significant shift in U.S. law. Less than 20 years ago, in 1996, Democratic president Bill Clinton signed into law the infamous Defense of Marriage Act (DOMA). That hateful piece of legislation had ruled that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It also said that no government entity could be required to “give effect to any public act ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of (another government entity).”

The Supreme Court: An Institution of the Ruling Class

The Supreme Court is often portrayed as a detached body of legal scholars whose rulings are based solely on interpretations of the law, especially as expressed in the U.S. Constitution. It is supposedly immune from political pressures and not subject to considering developments in a constantly changing society. Nothing could be further from the truth. For example, for generations the Supreme Court held that slavery was constitutional. And then, for generations, overt discrimination—the original Jim Crow—was upheld by Supreme Court rulings that “separate but equal” was legal. Changes in how the Court interprets the Constitution are very much driven by political factors.

The Supreme Court is a body of the U.S. ruling class that, as Bob Avakian (BA) puts it, provides interpretations of the law which “...will fundamentally reflect and serve the prevailing social relations (and, above all, the production relations) and the interests and needs of the ruling class, interpretations which may change with changes in the particular ways those relations find expression and are understood by various representatives of the ruling class—always, however, within the basic framework of this system of exploitation and its underlying dynamics.”

In this case, there were very sharp, very nasty divisions on the Court over exactly how to “serve the prevailing social relations” of exploitation and oppression that define the United States.

The connection between these sharp, hostile differences on the Court, and larger conflicts within the ruling class and in society are beyond the scope of this article—for background, see The Coming Civil War and Repolarization for Revolution in the Present Era, by Bob Avakian, and excerpts from Preaching from a Pulpit of Bones―We Need Morality But Not Traditional Morality, also by Bob Avakian.

The divergent positions on the Court reflect extreme fissures in U.S. society and thinking among the powers-that-be on how to shore up and perpetuate this system. You can see that in their arguments.

The Logic of the Majority

The Supreme Court’s majority ruling on same sex marriage, written by Justice Anthony Kennedy, drew extensively on previous legal rulings of the Supreme Court and other federal and state courts, and also made wide ranging references to the historical evolution of the institution of marriage. It cited thinking on marriage and its relation to the larger society from various political theorists from the ancient world to modern society.

Kennedy wrote, “[T]he marriage laws enforced by the respondents [states that ban same-sex marriage] are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.”

But the heart of the ruling, and the anxiety of the five Justices who ruled in favor of same sex marriage, centered around a concern they expressed thus: “this Court’s cases and the Nation’s traditions make clear that marriage is a keystone to the Nation’s social order.”

Marriage is a social institution that has changed and developed repeatedly as the society it is part of changes. The development and change in the forms of marriage was in fact noted by the justices who voted to uphold same sex marriage—and denied by the four who opposed it. For example, Samuel Alito said in his dissent that “for millennia, marriage was inextricably linked to the one thing only an opposite sex couple can do: procreate.”

The reality is that since its institutionalization in the earliest stages of class society—divided into slave masters and slaves, landowners and peasants, and today those who own the vast productive forces in society and those who they exploit—marriage has been an institution that ensured an orderly transfer of property from a man to his heirs and the orderly maintenance of oppressive social orders that enshrined individual ownership of slaves, women, and property. Forms of marriage have evolved to promote and strengthen systems of oppression as they have evolved (for example, the Bible upholds men having dozens of wives).

The five justices who voted to uphold and extend same sex marriage took note of this. They pointed out that two practices that had been considered essential to the institution of marriage as it developed in Western countries including the U.S.—arranged marriage and coverture—no longer exist. (Coverture is a legal doctrine in which a married woman does not have any legal existence apart from her husband. The last legal vestiges of couverture in the United States did not end until Louisiana struck down its “Head and Master” law in 1979, and in 1980 the Supreme Court declared male-dominated couverture illegal).

The justices point was that the elimination of customs that had been closely associated with marriage had strengthened, not undermined, both the institution of marriage and the capitalist society in which it was situated. They took note of the significant changes within this society in recent decades regarding LGBT people, and in its various educational, political, military, legal, and other institutions.

Fascist Backlash on the Court & Beyond

The other justices, led by the fascist Antonin Scalia, who described this ruling as a “judicial Putsch” (coup), furiously insisted in their dissents that the country must be cohered by forcefully imposing “traditional marriage”—male domination, patriarchy, a woman’s subordination first to her father, then to her husband, and always, always, marriage only between a man and a woman.

There were two themes to their outrage and dissent. One was that the Supreme Court was legislating law, not interpreting the Constitution. Chief Justice Roberts, wrote that “[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, Justices have power to say what the law is, not what it should be.”

As noted, the majority justices pointed to previous marriage laws that were ruled unconstitutional as society evolved. And there is the precedent of Loving vs. Virginia, where the Supreme Court ruled in 1967 (as late as that!) that laws banning marriage between Black and white people were unconstitutional.

The more essential argument from the—let’s tell it like it is—fascists on the Court was that ending one form of persecution and discrimination in law was taking away the religious rights of those who oppose gay marriage on religious grounds.

Chief Justice John Roberts wrote that the ruling “creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution.”

Alito wrote: “By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.”

In other words, the ruling might impinge on people’s right to discriminate and, further, that people who are prejudiced against LGBT people might feel marginalized.

Throughout Alito’s furious objections (and those of his fascist colleagues) runs a hardly disguised theocratic thread—that the morality and laws of the Bible should trump the Constitution or law. He even complained that the Court had too many people from New York City, and that it’s rulings were of questionable legitimacy since “Not a single evangelical Christian (a group that comprises about one quarter of Americans)” was on the Court—as if the role of Supreme Court justices is to base rulings on fundamentalist religious beliefs, not law. And in the nastiness of his attacks on the majority and invocation of formulations like saying with this ruling the Supreme Court “move[s] one step closer to being reminded of our impotence,” Alito threw raw meat to sections of society who are being whipped up and mobilized to defend reactionary “traditional values” of all kinds.

Clarence Thomas’ dissent claimed, “In our society, marriage is not simply a governmental institution; it is a religious institution as well.” And, “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

And follow the logic of the logic. People should be free to practice their religion―this is something guaranteed in the Constitution for the New Socialist Republic in North America (Draft Proposal). But that's different than saying no laws can protect people if doing so offends the beliefs of religious fundamentalists. That would mean that the law of the land cannot prevent parents from murdering their children for talking back to them (Exodus 21). Or, that society cannot ban killing LGBT people because Christian and Jewish fundamentalists who take the Bible as the literal and unalterable word of “God” might believe that “If a man lies with a male as one lies with a woman, the two of them have done an abhorrent thing; they shall be put to death” (Leviticus 20:13)

The logic of the dissents is ominous, and the impact was to unleash a rash of defiant protests including by almost all the major Republican candidates for president and state and local officials particularly in the South.

Texas Senator Ted Cruz said the same-sex marriage ruling “undermined the fundamental legitimacy of the United States Supreme Court.” He and another leading candidate for president—Wisconsin Governor Scott Walker—called for a constitutional amendment that would allow states to define marriage. The governor of Texas, Greg Abbott, sent agencies a memo denouncing “religious coercion,” citing the Texas Religious Freedom Restoration Act, and saying that no action should be taken against any official “on account of the person’s act or refusal to act that is substantially motivated by sincere religious belief.” The state’s attorney general, Ken Paxton, instructed officials not to follow the ruling—at least for now—and justified that with overtly theocratic logic: “no court, no law, no rule, and no words will change the simple truth that marriage is the union of one man and one woman.”

Some of these local officials have backed off refusing to issue marriage licenses to same-sex couples but even this basic right is tenuous at this writing.

An Historic Victory, an Unfinished Battle

The Supreme Court’s majority, in response to seismic changes in society, in attitudes, and decades of courageous protest from the Stonewall Rebellion to ACT UP and beyond, moved to legalize same sex marriage on the basis that doing so would contribute to social cohesion of the imperialist nation at a time when much of the social fabric is fraying.

Yet and still, as we pointed out last week in Revolution, “[I]t is still the case in 2015 that only a handful of states even have anti-discrimination laws protecting the rights of gay, transgender, or gender non-conforming people. It is still perfectly legal in vast regions of this nation of so-called ‘equal rights’ to fire a person from their job, kick a person out of a store, evict someone from their home or apartment, or deny a person the right to be legal guardians of their own children, just because they do not conform to the rigid gender roles dictated to them by this patriarchal system.”

Both the ruling class forces represented by the majority ruling, and those represented by the fascists on the Supreme Court, are starting from how best to re-cohere a society built on genocide and slavery, and permeated through and through by oppression of every kind. Both factions are about reinforcing, not shattering, traditions chains. But revolution does provide a way out of millennia of inherited oppressive traditions, including the patriarchal foundation for marriage, and a way to organize society in the interests of the vast majority, and ultimately all humanity.


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