In Defence of Liberty

Driven by data; ridden with liberty.

It is so ordered

The United States Supreme Court has ruled that marriage is a fundamental right, and cannot be denied to couples of the same sex. (Edited: Zach Gibson/The New York Times)

The United States Supreme Court has ruled that marriage is a fundamental right, and cannot be denied to couples of the same sex. (Edited: Zach Gibson/The New York Times)

After a historic ruling by the Supreme Court [1], the United States became another country to remove the prohibition on same-sex marriages nationwide. The fourteen states with bans can no longer enforce them.

In a 5-4 majority ruling in the case Obergefell v Hodges [2], the United States Supreme Court held that the Fourteenth Amendment [3] “requires a State to license a marriage between two people of the same sex and to recognise a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State”.

The percentage of the US population living in states with equal freedom for same-sex couples to marry is now 100%. (Source: FiveThirtyEight)

The percentage of the US population living in states with equal freedom for same-sex couples to marry is now 100%. (Source: FiveThirtyEight)

“Judicial tyranny”

A common chorus to controversial decisions of the US Supreme Court is the concern over judicial activism, and the balance between legislatures and courts. Republican presidential candidate Mick Huckabee, and former governor of Arkansas, said it was “an out-of-control act of unconstitutional judicial tyranny”. This chorus was heard on both sides of the Atlantic, as Conservative MEP Daniel Hannan posted on Twitter that “marriage is a state prerogative”, before beseeching:

Isn’t there a difference between changing the law democratically (as we did in the UK) and simply overruling it?

As Justice Kennedy wrote in the majority opinion for Obergefell v Hodges:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.

It is the essential role of a court to uphold the legal process. Supreme Courts have the duty to decide what should occur when a democratic legislature, flawed in its reflection of humanity, has issued two incompatible laws.

The Supreme Court has judged that the right to marry is fundamental, “inherent in the liberty of the person”, and so under the clauses of due process and “equal protection of the laws” described in the Fourteenth Amendment, couples of the same sex may not be deprived of this liberty.

It is so ordered.

References

[1] BBC News, 2015. US Supreme Court rules gay marriage is legal nationwide. Available from: http://www.bbc.co.uk/news/world-us-canada-33290341. [Accessed 27th June 2015]

[2] US Supreme Court, 2015. Obergefell v Hodges. Available from: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf. [Accessed 27th June 2015]

[3] Legal Information Institute. 14th Amendment. Cornell University Law School. Available from: https://www.law.cornell.edu/constitution/amendmentxiv. [Accessed 27th June 2015]

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This entry was posted on June 27, 2015 by in American Politics and tagged , , , .
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