Constitutional right to Same- Sex Marriage as ruled in the case of OBERGEFELL v. HODGES

In a landmark precedent decision by a Majority of 5 Justices and 4 Dissenting Justice Opinions, the U.S. Supreme Court ruled on June 26th 2015 in OBERGEFELL v. HODGES that Same-Sex Marriage is a right guaranteed under the U.S. Constitution.

Previously, only 36 States permitted same-sex marriage by their legislators, but in the new Decision, the Supreme Court has ruled that the right to marry is a fundamental right guaranteed by the Constitution and supported by a body of case law.  The Ruling thereby strikes legislation in all States restricting marriage to heterosexual couples while prohibiting same-sex marriages.

In June 2013 the U.S. Supreme Court made another landmark precedent Decision when it ruled that Same-Sex Married couples are entitled to the same Immigrant and Non-Immigrant Visa Benefits as Heterosexual Married Couples.  As a result, Immigration and Non-Immigrant Benefits were made available to all qualifying Visitor and Immigrant married couples (same-sex or heterosexual) entering all 50 of the United States – regardless of whether same-sex marriages were legal or not in the State where they chose to live – as long as the Petitioners and Applicants of same-sex marriage entered the marriage union in a State or Country where the performance of Same-Sex Marriages was conducted legally.  Although the new precedent Decision does not change the current visa and immigration policy in the U.S. it does mean that Same-Sex Marriages conducted legally in every U.S. State should now qualify for visa and immigration purposes to the U.S.

The Majority Decision cited Equal protection under the law and that Dignity is surmised by the 14th Amendment Right to Due Process when depriving a Citizen of Liberty.

The Dissenting Opinions by Justices, Scalia, Roberts, Thomas, and Alito disagree with the Majority Opinion stating among other things that it was not the Court’s part to assume the role of lawmaker and that Due Process when depriving a Citizen of Liberty in this case was a flawed legal construction whereas the Constitution does not expressly guarantee the right of Dignity (one of the bases for the Majority Decision) and that the Framers of the Constitution never contemplated the right of same sex couples to marry.  All of the Dissenting Justices believed that it is the role of the lawmakers to enact law and not the role of 9 appointed lawyers, judicious and knowledgeable of the law as may be, to wax such broad interpretation of the 14th amendment as to steal the role of lawmaker from the people who have elected their representatives (albeit, none of the Dissenting Opinions focused on the role of judiciary in a democracy for protecting the equal rights of individuals and minorities, focusing mainly on the evils of Judicial Intrusion).  Adopting an historical perception of marriage as good enough for the Framers of the Constitution (who saw no need to specify that only a man and a woman shall enter union of marriage) the Minority Opinions found no merit in broad Judicial Review striking marriage legislation in Ohio (and 25 other States at the same time).  It took nearly 200 years before the U.S, Supreme Court would unanimously rule in Loving v. Virginia (1967) that state bans on interratial marriages were unconstitutional and that the right to marry was fundamental – finding no justification for excluding interracial unions from that Right.

One Dissenting Opinion (Alito) declares that the Same-Sex marriage is not a fundamental right inherent to individual liberty but rather a new right based on recent historical changes beginning with the Netherlands in 2000.   He argued that for millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate, claiming also that dignity is not something that can be bestowed by the government, but rather to be protected.  His Dissenting Opinion expresses concern about what the consequences will be – to the people who objected to the legalization of same-sex marriages fearing they would be vilified,  branded as bigots and subject to future possible government sanctions?

(Some might ask: Aren’t they already and or shouldn’t they be?)

By comparison, Israeli Law does guarantee the basic human right to dignity under the Constitutional Law (Basic Law) of Human Dignity and Liberty.  Yet, Paragraph 7 of the law serves to justify offsetting  this basic right which can be, and is, superseded in cases where the courts find that interpretation of conflicting law complies with the “limitation” paragraph – a mechanism by which the Court weights in balance the conflicting rights of the parties and restrains itself in cases where the negative consequences of Judicial Review outweigh the benefits to be gained by judicial relief.  It seems unlikely that a Decision similar to OBERGEFELL v. HODGES would be rendered by an Israeli court, solely to guarantee the right to same-sex couples wishing to marry.  This is especially true considering that it has not done so to protect the rights of hundreds of thousands of Israelis (Same-Sex couples included), currently denied the Fundamental Right to marry inside the State of Israel – where the Religious Courts have sole jurisdiction in matters of marriage and divorce.

Dissenting Opinion in OBERGEFELL v. HODGES expressed concern that the new Decision will have a conflicting effect on the religious liberties of the individual.  This seems a weak consideration viewed in contrast with the other extreme as is the case in Israel, where religious liberties override individual fundamental liberties such as the right to marry, thereby denying this fundamental right to a (very) large percentage of the country’s population.

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