In 2015, the U.S. Supreme Court ruled in a 5-4 decision in Obergefell v. Hodges that same-sex marriage was a constitutional right protected by the 14th Amendment. I have written a series of posts over the years arguing that this decision can be defended as grounded in Thomistic natural law and Darwinian natural right. So I was pleased to learn that today the Supreme Court has refused to reconsider this decision, even though many people have assumed that the same conservative majority on the Court that overturned Roe v. Wade would also want to overturn Obergefell.
Kim Davis, a former Kentucky county clerk, had filed the petition asking the Court to reconsider Obergefell. Davis became famous in 2015 for defying a court order to obey the Court's decision and issue same-sex marriage licenses. She argued that she could not issue licenses to same-sex couples without violating her religious belief that homosexuality and same-sex marriage violate the divine law of the Bible, and therefore to force her to issue those licenses would violate her freedom of speech and her religious freedom. She spent five nights in jail after she was found in contempt of court for refusing to follow a court order to issue licenses to same-sex couples. Years later, a Kentucky gay couple sued her for refusing them a marriage license. They won at trial in 2023, and Davis was ordered to pay the couple $360,000 in damages and lawyers' fees.
The Supreme Court has declined to consider Davis's petition without comment, and so we don't know how the Justices reached this decision or how they voted on this. But we do know that the Court's accepting a petition like this requires that at least four of the nine judges must vote for it. We also know that of the four dissenters in Obergefell--John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito--three are still on the Court (Roberts, Thomas, and Alito). So, if we assume that those three voted to reconsider Obergefell, that means that they failed to persuade any of the other Justices to vote with them.
We have to infer, therefore, that none of the three Justices appointed by Trump--Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett--wished to consider overturning Obergefell. That's particularly remarkable in the case of Gorsuch because he replaced Scalia--after Scalia's death--but apparently Gorsuch does not agree with Scalia's dissent in Obergefell. Gorsuch embraces the originalist and textualist jurisprudence that Scalia championed. But it would seem that unlike Scalia, Gorsuch believes that a constitutional right to same-sex marriage can be grounded somehow in the original meaning of the Constitution--particularly, the 14th Amendment.
The crucial point here is that the right to same-sex marriage is not specifically enumerated in the Constitution--in contrast to those rights enumerated in the first eight amendments. So if there is a constitutional right to same-sex marriage, it would have to be an unenumerated right that is somehow implied in the original meaning of the Constitution. I have argued that the Ninth Amendment clearly allows for such unenumerated natural rights: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." "Retained by the people" suggests rights that belong to the people by nature that the government must secure--as affirmed by the Declaration of Independence.
We have to wonder whether Gorsuch and perhaps others on the Court agree with this.
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