Kevin Baldeosingh
Last week's ruling by the Supreme Court of the United States legalising same-sex marriage was not a legal decision, but a moral one.
Of course, the ruling is legal in that it has legal force. But the underpinnings of the decision were more moral than legal, as shown by the fact that the judgment was upheld by only five of the nine judges who comprise the court, with three of the other judges writing dissenting opinions.
The judgment delivered by Justice Anthony Kennedy proffered "four principles and traditions" as the bases for the decision. These were (1) the right to personal choice regarding marriage is inherent in individual autonomy; (2) the right to marry supports a two-person union unlike any other in its importance to the committed individuals; (3) the right to marry safeguards children and families; (4) marriage is a keystone of the nation's social order.
In his dissenting opinion, Justice Antonin Scalia accused the majority of catering to the policy views of a particular constituency. "A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy," he wrote.
However, in his book Why Societies Need Dissent, American law professor Cass Sunstein notes: "The court's occasional expansions of constitutional rights and its recognition of new rights generally fit with an emerging social consensus."
This is demonstrated by previous decisions of the court. In the 1986 case Bowers v Hardwick, the court held that laws which criminalised sodomy were not only legal in principle, but also argued that their ruling was based on moral considerations. "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed," said the court.
In that case, Justice John Stevens wrote a dissenting opinion stating that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."
In 2003, 17 years later, the court cited Stevens in reversing its own decision in Lawrence v Texas, stating that "Bowers was not correct when it was decided, and it is not correct today."
Despite the dissenting justices claiming that they were arguing law, not morality, their dissent invoked natural law arguments which, for all practical purposes, are indistinguishable from religious assertions. Chief Justice John Roberts, for example, asserted that marriage "referred to only one relationship: the union of a man and a woman" and "arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship."
Anthropologically speaking, this is false: marriage in 80 per cent of societies has actually been practised as a union between one man and several women and, on average, unions lasted about four years. The concept of a lifelong monogamous union is very much a modern Western ideal.
Justice Clarence Thomas in his dissent also held that the dignity argument of the majority was legally and philosophically baseless because, "when the framers proclaimed in the Declaration of Independence that 'all men are created equal' and 'endowed by their Creator with certain unalienable rights', they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth."
Thomas, who is black, argued that "slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved." Thomas raised this point because the same-sex marriage ruling was based on the Fourteenth Amendment to the US Constitution, which was passed in 1866 primarily to give equal rights to the former slaves.
The ruling also referenced the 1967 Loving v Virginia case, where the court ruled that laws banning marriage between whites and blacks were unconstitutional. In that ruling, the court reversed the decision of a lower-court judge who had argued that "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference of his arrangements, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."
It is not coincidental that modern-day bigots should use exactly parallel reasoning to argue that homosexuals should not have the same rights as heterosexuals. But even judges' opinions are not rooted in law, but in their bias.
As US Appeal Court judge and law lecturer Richard A Posner notes in his book The Problem of Jurisprudence, "Much of the law applied by judges, not to mention that 'law' that tells us whether the rules or for that matter the judges themselves are lawful, consists of moral and political considerations."
If this is also true of local judges, it will be many decades before gays in T&T get equal rights.
–Kevin Baldeosingh in a professional writer, author of three novels, and co-author of a history textbook