If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
No, the decision is not unanimous. As the Court has politicized itself more and more by imposing policy rather than deciding cases, the frequency with which the Court is closely divided on outcomes continues to increase. Obergefell was no different, decided five justices to four.
Any other outcome would have been unthinkable. The gap in judicial philosophy between, on the one hand, Justices Scalia, Thomas, and Alito, and, on the other hand, Justices Breyer, Ginsburg, Sotomayor, and Kagan, on these questions is too broad to conceive of a unanimous result. The only surprise that remained in the Obergefell was whether Justice Kennedy would vote with the constitutional block or the progressive one.
Is the outcome without any apparent partisan bias?
No, the outcome is not without any apparent bias. Two Justices, Ruth Bader Ginsburg and Elana Kagan, had already officiated at same sex marriages while the Court mulled the question whether the Fourteenth Amendment guarantees an right to same sex marriage. It strains credulity, and it insults those Justices' sense of their own integrity, to charge them with what would have been the cynical act of presiding over marriages the legitimacy of which they held in doubt. Clearly, Ginsburg and Kagan labored under a bias favoring the recognition of same sex unions.
Is the decision in accord with public expectation?
Legal public expectation is an interesting notion. The vast majority of States have statutes or constitutions defining marriage so as to limit it to opposite sex couples. True, courts have suspended the operation of those laws. Nonetheless, those laws and constitutional provisions were the product of majority or super majority actions of legislatures and electorates. A recent story reveals the embarrassing lack of legitimacy to a study of how Americans perceive same sex marriage when they are given to understand that their communities accept the idea. I suspect
Has the recognition of a constitutional right to same sex marriage been a marked feature of the practice of governmental departments throughout our history?
Hardly. It is just two terms since the Supreme Court found one section only of the Defense of Marriage Act unconstitutional. Candor requires supporters of same sex marriage constitutional rights theories to acknowledge the novelty of their cause.
Was the decision based on false assertions of fact?
It is painful to touch on this next point. It risks hurt to people I think are of good will. But I prefer not to be charged with a flabby application of
At oral argument, Justice Kennedy pointedly noted that the existing, opposite sex couple definition of marriage is no novelty, but a function of the history of millennia in which is found no open practice of the right to same sex marriage. Contentions to the contrary screen reality. Moreover, and this risks the undesired infliction of pain, opponents of same sex marriage provided the Court with social science evidence that opposite sex couples provide the best foundation for the development of healthy children. This point, that harm will ensue to children has been buried by Justice Kennedy’s curious rearrangements of facts.
Was the outcome one that has been had affirmed and re-affirmed through a course of years?
Obviously, Obergefell, being the first decision recognizing a Fourteenth Amendment right to same sex marriage, cannot make such a claim. It remains to be seen whether the coming course of years will produce affirmations and re-affirmations of it by the court.