The decision of the Supreme Court of the United States to reverse bans on same-sex marriage nationwide is an important victory for the gay and lesbian community and for civil rights movements in general.
Civil rights are those that limit the power of powerful institutions like companies and governments from infringing upon individual freedoms. This is one of the reasons why communist countries like the former GDR banned same-sex marriage; if a government can control what people do in the bedroom, they can control much more and stay in power for much longer. Ironically, the religious right in western countries poses the same threat to civil rights, and thus individual freedoms, as communist regimes did. Hence, non-homosexual defenders of civil rights rejoice at the decision of the high American court because it placed further limits on institutional control of individual freedoms. It is all the more important that this happened in a developed and largely conservative country of 320 million people.
The end of same-sex marriage bans in the United States will certainly heat up the debate of marriage equality here in Germany, and the opinion of the court delivered by Justice Kennedy sets a powerful precedent.
Proponents of marriage equality in Germany will likely use this elegant judicial piece to counter often-repeated arguments against its legalization. I assume that an important point in the German debate will be the American courts’ approach to the question of whether same-sex marriage should be allowed if the couple will not be able to conceive children, thus diminishing a fundamental pillar of the institution of marriage.
The fact that same-sex couples cannot bear children has been a commonly heard argument against the legalization of this type of marriage in the United States, Germany and many other places. In Germany, this point is emphasized since marriage provides tax benefits aimed at creating incentives to increase the dwindling German population. In other words, many fear that Germany’s demographic problem will worsen with the legalization of same-sex marriage. Here is where a crucial related part of the U.S. high court’s decision comes in.
The court tackled the above issue by referring to the precedent of Griswold v. Connecticut, which was a decision delivered by the same high court in 1965 striking down laws banning the right of couples having access to contraception. This precedent states that the choice of couples to put off having children to a later time, or not to have them at all, does not undermine the institution of marriage, and that bans on contraception were an infringement on the right to privacy protected by the U.S. Constitution. Thus, same-sex marriages cannot be denied on the basis of the couple’s inability to conceive children – an important argument applicable to the European context as well.
Now, I don’t want to rain on anyone’s parade, but the precedent set by this decision is not all positive for the gay and lesbian community and civil rights in general.
This is because it was a close decision (5 to 4), meaning that it left not just a couple of dissenting opinions, which is very common in the history of this court, but four different ones. Dissenting opinions are important to look at because they often serve as the basis for overturning a decision by a future court. In this case some of these opinions, like the one drafted by Justice Scalia, criticize that the majority opinion is an infringement on democracy because an unelected branch of government such as the high court cannot replace the job of Congress to draft and review the laws of the land. This is a weak argument, since it is the independence and power of the courts that protect the rights of minorities from the tyranny of the majority. Such was the case in the Supreme Court decisions of Brown v. The Board of Education of Topeka (1954), which overturned racial segregation in public schools and kick-started the civil rights movement, and Roe v. Wade (1970), which ruled abortion bans as infringing upon women’s privacy and autonomy.
But… and there is always a but… the dissenting opinion drafted by Chief Justice Roberts (a socially conservative but brilliant legal mind appointed by G .W. Bush) made a much more compelling case against the majority decision. To put it in a few words, he argued that the decision stretches the interpretation of the spirit and letter of the 14th amendment of the U.S. Constitution, which is the one authorizing states to issue marriage licenses. A socially conservative bias does taint the dissenting opinions, but the one by Chief Justice Roberts seems to me the most coherent of them all. Conservatives in the future that attempt to overturn this decision might use some parts of these dissenting opinions. However, this will primarily affect people living in America.
Although this is a major victory for the gay and lesbian community, the decision by the U.S. Supreme Court will ignite debate for years to come.
Some of the issues will revolve around the applicability of this legal precedent to other countries, such as Germany. Also, it brings up the question of the role of independent courts in a country and how much power they should have. Do they protect minorities’ rights from the tyranny of the majority, or can they also harm civil rights because of their undemocratic nature? Does democracy need undemocratic powers such as courts to achieve balance of power, or should the people be the only ones to decide? These questions have been around for a while, and the U.S. high court just brought them back to the fore.