Sun | Oct 22, 2017

Patrick White: Opposition to gay-marriage ruling baseless

Published:Saturday | July 18, 2015 | 11:06 PMPatrick White
Patrick White
In this July 10 photo, Molly Maness-Roberson (left) and Keri Roberson smile with their son, Boston Roberson, in Burleson, Texas. The lesbian couple is fighting for a birth certificate with gender-neutral identification. Texas birth certificates include a space for one mother and one father on the form, and gay couples seek the removal of gender-specific language from the document and its application forms.
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Reading the columns published in The Gleaner criticising the US Supreme Court's gay-marriage decision, one is left with the impression that the opinions of the four dissenting justices were more legally grounded than the majority opinion shared by the other five justices. This is not the case.

The majority opinion flows logically and persuasively from precedents established by the Supreme Court in Loving v Virginia (1967), striking down interracial marriage bans, and Lawrence v Texas (2003), invalidating buggery laws. The decisions in both cases, and the current gay-marriage case, Obergefell v Hodges, are based on a consistent reading of the due-process and equal-protection clauses of the 14th Amendment to the US Constitution.

In the Loving case, Richard Loving, a white man, and his wife, Mildred, a black woman, were sentenced to a year in prison for the 'crime' of being married. They appealed, the case eventually reaching the US Supreme Court. In making its decision, the court found marriage to be a fundamental right and, as such, could not be denied, solely on the basis of the race of the parties.

The concept of some rights being fundamental flows from the court's interpretation of the due-process clause in the 14th Amendment. Broadly speaking, due process limits the government's ability to confiscate property, or deprive a citizen his/her freedom, except through a legal process. The court has also interpreted due process to mean a law, which circumscribes fundamental rights, such as the right to marry, is invalid, unless it is the least restrictive alternative for achieving a compelling societal interest.

Since the right to marry was deemed by the court in Loving to be a fundamental right, the homophobic side in Obergefell would have to show a compelling societal interest was at stake, if it were to prevail. But in doing so, they could not assert moral opprobrium to gay sex, as is often done here, because the court had already determined in Lawrence that mere disapproval was not a compelling societal interest; an actual harm had to be demonstrated.

This left the homophobic side in a quandary. The best they could do was offer the bizarre argument that marriage originated as a response by heterosexual couples to accidental pregnancies, so the government did have a basis for restricting marriage to these couples!

It is unlikely that marriage arose for this reason, but even if this were true, the claimed societal interest would not be sufficiently compelling. The court's decision was, therefore, reasonable and logical. The 14th Amendment does not permit states to condemn gay couples to second-class lives because of their sexual orientation.

Here in Jamaica, this is ignored and the generally weak and unpersuasive dissents have found favour with most commenters, including former Prime Minister Golding. One popular viewpoint is that the decision goes beyond the court's constitutional mandate, invading the legislative prerogatives of the 13 (of 50) states that had not approved gay marriage. But this viewpoint is not sustained by the facts, as the previous discussion shows.

One dissenter, Justice Clarence Thomas, the only African-American on the court, argued for abandoning the precedents established by earlier courts interpreting due process. He may not have realised that had the court adopted his reasoning in the Loving case, he could be facing prosecution today for his interracial marriage.

John Roberts, the chief justice, capped his dissent with the remarkable claim that the court should have deferred its decision on gay marriage, abdicating its constitutional responsibility in favour of the legislatures in the 13 states. However, Justice Roberts showed no such restraint when he invented a new state's right to overturn an important protection for minority suffrage in the Voting Rights Act. And he showed no such restraint when he bestowed 'personhood' on corporations to strike down limits on campaign finance laws.

One cannot help feeling dismayed that a majority of our intellectual leadership, including Mr Golding, chose to side with these dissenters, clearly unmoved by the thousands of years gay people have been stigmatised, beaten, and killed because of their orientation. To them, perhaps, the only remedy they can conceive for this shameful history is to continue this shameful history. Perhaps President Obama was right: We have indeed lost our capacity for empathy.

Patrick White, PhD, is a member of the Advisory Council at the University of Pittsburgh, School of Information Sciences, and consultant on communications strategy for the CEO of Goodman Networks in Plano, Texas. Email feedback to columns@gleanerjm.com and pew_com@me.com.