Jus­tice was done in US, and it re­sounded all around the globe

The China Post - - COMMENTARY -

Years from now, the de­ci­sion of the U.S. Supreme Court rec­og­niz­ing the right of same-sex cou­ples to marry will seem in­evitable, history it­self march­ing in­ex­orably for­ward. It is pos­si­ble, given even just a few days’ worth of hind­sight, to find a pat­tern of le­gal judg­ments and leg­isla­tive ini­tia­tives, of shifts in cul­ture and of changes in public opin­ion in the United States, that sug­gest that the time was ripe. But when the rul­ing in Oberge­fell ver­sus Hodges came down on Fri­day, the his­toric re­sult was star­tling.

The 5-4 vote was ex­pected, the role of As­so­ciate Jus­tice An­thony Kennedy as swing vote all but pre­or­dained. Even the ar­gu­ments were fa­mil­iar and re­hearsed. The “con­ser­va­tive” jus­tices as­so­ci­ated with the Repub­li­can Party framed the is­sue as a dis­cus­sion on the power of the states to en­act laws as they see fit; the “lib­eral” jus­tices as­so­ci­ated with the Demo­cratic Party, and the cen­trist Kennedy, who wrote the de­ci­sion, un­der­stood the is­sue as an ex­pan­sion of the Amer­i­can con­sti­tu­tion’s prom­ise of lib­erty.

But in its most im­por­tant premises and fi­nally in its sweep­ing con­clu­sion, the de­ci­sion broke new ground.

I t as­sumed that, like any other hu­man in­sti­tu­tion or so­cial tra­di­tion, even mar­riage was in a con­stant state of evo­lu­tion. “The history of mar­riage is one of both con­ti­nu­ity and change. That in­sti­tu­tion — even as con­fined to op­po­site-sex re­la­tions — has evolved over time.”

It also posited that, as growth in hu­man knowl­edge al­lows a deeper un­der­stand­ing of the hu­man con­di­tion, new rights may be dis­cov­ered. “The gen­er­a­tions that wrote and rat­i­fied the U.S. Bill of Rights and the Four­teenth Amend­ment to the U.S. Con­sti­tu­tion did not pre­sume to know the ex­tent of free­dom in all of its di­men­sions, and so they en­trusted to fu­ture gen­er­a­tions a char­ter pro­tect­ing the right of all per­sons to en­joy lib­erty as we learn its mean­ing. When new in­sight re­veals dis­cord be­tween the Con­sti­tu­tion’s cen­tral pro­tec­tions and a re­ceived le­gal stric­ture, a claim to lib­erty must be ad­dressed.”

It also as­serted that the prom­ise of lib­erty “in­cludes cer­tain spe­cific rights that al­low per­sons, within a law­ful realm, to de­fine and ex­press their iden­tity”— a premise that, by un­der­stand­ing the pe­ti­tion as an ex­er­cise in defin­ing and ex­press­ing the iden­tity of same- sex cou­ples, and then equat­ing iden­tity with lib­erty, grants the pe­ti­tion­ers the pro­tec­tion of the U.S. Con­sti­tu­tion.

The con­clu­sion is clear and brac­ing. “These con­sid­er­a­tions lead to the con­clu­sion that the right to marry is a fun­da­men­tal right in­her­ent in the lib­erty of the per­son, and un­der the Due Process and Equal Pro­tec­tion Clauses of the Four­teenth Amend­ment cou­ples of the same sex may not be de­prived of that right and that lib­erty. The Court now holds that same-sex cou­ples may ex­er­cise the fun­da­men­tal right to marry. No longer may this lib­erty be de­nied to them.”

It is worth not­ing that the strongly worded dis­sent­ing opin­ions did not di­rectly ad­dress the is­sue of whether same-sex cou­ples had the same right as “or­di­nary,” op­po­site-sex cou­ples to marry when they choose to; rather, the dis­sents ques­tioned the demo­cratic pro­pri­ety of “five lawyers” de­cid­ing an is­sue of over­rid­ing so­cial im­por­tance all by them­selves. The ar­gu­ment is a lit­tle rich, given that these same jus­tices have no prob­lem with five lawyers mak­ing a de­ci­sion when the de­ci­sion fa­vors busi­ness en­ter­prises or, as in the 2000 elec­tion, a Repub­li­can can­di­date f or pres­i­dent. But on the case at hand, even Chief Jus­tice John Roberts in his dis­sent ac­knowl­edged that “Sup­port­ers of same-sex mar­riage have achieved con­sid­er­able suc­cess per­suad­ing their fel­low cit­i­zens — through the demo­cratic process — to adopt their view.” True, he sees the court’s de­ci­sion as putting an end to that process, but surely he is mis­taken. Judges, too, have their role to play in democ­racy.

The clos­ing para­graphs of the ma­jor­ity opin­ion are a mov­ing paean to the tra­di­tional in­sti­tu­tion of mar­riage: “No union is more pro­found than mar­riage, for it em­bod­ies the high­est ideals of love, fi­delity, de­vo­tion, sac­ri­fice, and fam­ily.” At the same time it is a pow­er­ful sum­ma­tion of the ar­gu­ment in fa­vor of same-sex mar­riage: “It would mis­un­der­stand these men and women to say they dis­re­spect the idea of mar­riage. Their plea is that they do re­spect it, re­spect it so deeply that they seek to find its ful­fill­ment for them­selves.”

Last week, that plea was heard, not only in the United States, but through­out the lib­erty-lov­ing world. This is an ed­i­to­rial pub­lished by the Philip­pine Daily In­quirer on June 29.

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