SUPREME COURT - FUNDAMENTAL RIGHT TO MARRY v. RELIGIOUS LIBERTY

SCOTUS, April 28, 2015 - Obergefell v. Hodges – Oral Arguments
By Mario Gonzalez Jr., J.D.

I am a hardcore Mets fan. Stands to reason, in light of the fact that I always root for the underdog. But on occasion during a Mets game, regardless of how optimistic I might have been coming to the game, there comes a point where my team’s lackluster performance causes me to make the decision to leave the game early to beat the traffic. Staying to witness the slaughter is just too heartbreaking. This is exactly how I felt hearing John J. Bursch’s oral argument for the respondent states yesterday.

In a word, his argument was convoluted. Not only so, but it was more than likely grossly ineffective at changing anyone’s mind. Even when Justice Scalia threw Bursch a lifesaver trying to redirect him toward making a case for undergirding historical state sovereignty in regulating marital affairs, Bursch was unable to grab hold of it to save himself. When asked why a fundamental right such as the right to marry (marriage itself flowing from a broader fundamental ‘right to privacy’ implicit in the Due Process Clause, Zablocki v. Redhail, 434 U.S. 374 (1978)) should be made available to all but one class of people, namely those with same-sex attractions, Bursch wasted valuable court time by hopelessly trying to convince the court that the state’s primary interest in limiting marriage to heterosexual couples was based on the state’s compelling interest in promoting and controlling the nuclear family structure because of issues associated with procreation. Choosing this angle of argumentation to justify what would be the apparent denial of a fundamental right to a particularized group seemed unbelievably shallow and ill conceived to me. Let me say that in English - it was just dumb. As you can expect, the argument was literally gutted by the court, as it should have been. That said, John seems to get it together toward the end of his presentation. Until then, it appears that he had lost the Court. The prudent angle of attack, as hinted at by Scalia, should have revolved around outlining the likely havoc that an equal protection holding based on sexual orientation in this case would indirectly have on the state’s ability to decide its own destiny regarding the control of marriage within its boundaries – a control that they have had since the Constitution was forged and that is now, at least in terms of who can marry, being taken away. The second argument should have been the effect that such a holding would have on a citizen’s constitutionally protected religious liberty interests. The appellants actually publicly conceded that private religious schools could well be denied tax exemption by the holding in this case, should a school’s historic, biblical, and deeply held religious convictions force them to now allegedly discriminate against what would likely then be considered a “protected class” based on same-sex attraction. Beyond that, simply voicing the religious beliefs held by many orthodox religious people of many faiths on homosexuality itself might soon well be regarded as “hate speech” – a form of speech unprotected by the First Amendment – even on a pulpit. In short, religious organizations holding to traditional views on marriage are about to face the challenge of their lives.

As anticipated, the Loving and Windsor decisions were respectively shoved down respondent’s throat. The respondent’s arguments here were so bad that I actually found them really hard to listen to. I mentally got up and went to the imaginary parking lot in my head to beat traffic. A holding in favor of the states here would require no less than an act of God.