(Same) Sex, Lies, and Democracy: Tradition, Religion, and Substantive Due Process (With an Emphasis on Obergefell v. Hodges)

Abstract

Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court's most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents' voices. The dissenters were right -- at least in part.

Obergefell necessarily demeaned traditional and religious opponents of same-sex marriage, but nevertheless, the Court reached the correct outcome. Judicial neutrality is impossible, so the Court's decision inevitably would have privileged one voice or view over another. Although the dissenters further asserted that the majority impaired democracy, the opposite was true. Laws that discriminate against peripheral groups, such as gays and lesbians, undermine the democratic process. In a well-functioning democracy, certain issues must be off the table, beyond democratic debate. Treating gays and lesbians as full and equal citizens in good standing is one such issue, whether in regard to marriage or otherwise. The majority's decision in Obergefell ultimately bolstered the democratic process.

Keywords: Obergefell v. Hodges, gay rights, Supreme Court, same sex marriage, due process