top of page

The Supreme Court’s Gay Marriage Decision in Plain English… and Some Snark

June hits and suddenly everyone’s a Constitutional scholar.  On Friday the Supreme Court came out with the biggest decision of the year, quite possibly of the decade. Obergefell v. Hodges.  This post is to (very briefly) summarize, simplify and mock the arguments from a monstrous ~ 100 pages opinion.

This is a post on case law, not politics.  And yes, there is a difference.  You want to debate the Constitutional arguments used in the decision and the dissents, this is the place.  Though I may (er… will) make fun of you if you make bad arguments 🙂  Because I’m a lawyer, and we laugh at flimsy arguments like writers laugh at bad grammar on Twitter (because if we don’t laugh, we’ll cry.)

Held: The 14th Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

What this means is the Supreme Court (affectionately known as SCOTUS) told states they are not allowed to deny marriage licenses to same sex couples, much like back in the 60s when SCOTUS told the states they couldn’t deny marriage licenses to racially mixed couples.  It’s the same line of thinking.

The 14th Amendment is the long, wordy one that gets thrown around a lot and most people can’t say what it actually does.  But they love to argue it, usually clashing against the 10th amendment without knowing it because they don’t know what the 10th amendment is.  What, you don’t need actual facts to argue in this country.  What’s gonna happen to ya?  The government can’t throw you in jail for making unfounded arguments 😉 (1st amendment for the win!  And if you don’t know what the first amendment protects against, I just can’t talk to you.)  The 14th basically extends rights of citizens, that before were only rights against the government on the federal government level, to be rights they had under state government’s as well.

Wait, wait, wait, the federal government stepped in and said people have these rights, not only against them, but against these completely separate bodies of government?  Yep.  This was the beginning of the end of states’ rights.  It’s not a coincidence this amendment came about at the end of the Civil War.

Now, there’s a lot more in that opinion about how marriage is a keystone of social order in this country, yada yada yada.  It’s over 100 pages for a reason and it’s because the justices love to hear themselves talk… or write, as the case may be.  I feel really bad for students in future Constitutional Law classes because they’re going to have to read this for classes and you just know there’s law professors out there sadistic enough to assign the whole damn thing.  The main point is summarized beautifully in the holding: 14th amendment, bitches.  I’m paraphrasing of course.

The fun part are dissents.  The case was 5 – 4, with the 4 all doing their own dissents.  But the Scalia dissent is always the best one.  We love Scalia dissents.  He’s a snarky, conservative pain in the ass with wonderful arguments, a biting sense of humor and is actually a damn good writer.  Even law students who disagree with him politically (which is practically all of them nowadays because he’s like a 100, or at least has beliefs like he is 😉 love to read his dissents because they are well written and funny.

(Personal aside, my Civil Procedure professor 1L year was a Supreme Court Clerk for Scalia when he was fresh out of law school and walked away with a copy of Scalia’s sense of humor.  You have never laughed so hard while praying you won’t be next when he’s picking on one of your classmates.)

Scalia starts out with “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”  Hehehe, great start, right?  And it goes from there. “The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.”

Basically he’s arguing that the Court didn’t base it’s opinion in the Constitution, that they stretched the meaning of the 14th amendment, so they could play at making laws instead of interpreting them.  Some call this judicial activism… usually when the Court comes out on the side they’re against.

Scalia is what we call an originalist or a textualist (sp?).  He asks, what did the People mean when they wrote the Constitution and the Amendments.  When the 14th amendment was ratified, “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.”  “We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.”  And then he called the Court a Judicial Putsch and America learned a new word.  I myself will be throwing it around for the next month at least, just because I can 🙂

The majority says its decision is based upon the 14th amendment and equal protection under the law as we know it now, just look at our history of protecting rights in this area, such as when we said states couldn’t ban interracial marriages.  The dissenters say this is the Court playing legislature, making laws they have no right nor power to make.

It’s a debate over states’ rights and what the 14th amendment allows.  There aren’t holes in either side’s argument that are clearly filled by personal beliefs.  Of course this decision didn’t break along party lines.  Supreme Court Justices are above such things and never make decisions based upon politics or personal beliefs. 😉

(This post has been brought to you by the sarcastic mind of a lawyer who thinks it’s funny when Facebook blows up in June when SCOTUS decisions come rolling out, because everyone thinks they’re a Constitutional scholar.  This is not meant to be seen as any kind of legal advice, and if you want to know what the opinion actual says instead of this chopped up and twisted for funny’s sake snippet of it, go read it your damn self 😉

0 views0 comments

Recent Posts

See All


bottom of page