COMMENTARY: The implications of the US Supreme Court ruling on same-sex marriage to a gay lawyer

Like any other gay person in the world, I was one of those who applauded the US Supreme Court when it came out with its Decision to uphold the validity of gay marriages all over the United States.

It was a perfect ending to the love story of two men, who had to be married in another state because their state (Ohio) does not allow gay marriages. Arthur was dying and he wanted to show his ultimate act of love to Obergefell.

Love won because it knows no boundaries, gender, religion and sex. It transcends all. It was a moral victory of the children of two lesbian nurses who may have felt lesser because they came from “unusual” parents.

 

It was personal for me as well. Last year, my partner, Henry asked me to marry him. I told him the only way I could marry him is if I become an American citizen like the rest of my family.

We decided to put the plan to fruition with me going to the US, becoming an American citizen and marry him when the time comes. I intended to keep my promise. But fate had other plans. Two months after we made the promise, Henry died.

 

The Decision penned by Justice Kennedy was music to ever LGBTQ member in the world. It was recognition of years of struggle to be given equal rights and opportunities. The pursuit to happiness is not limited to heterosexuals but to the gays and lesbians as well. It was about human dignity and equal protection as guaranteed in the 14th Amendment. It was about every American’s right to choose whom he or she wants to be with in life. It was about protecting the children of gays or lesbians stigmatized by their parent’s status and in the process, doomed to a life of confusion and the feeling of inferiority. What more could I ask for?

 

Then I learned that the landmark case was won by a 5-4 vote. Only one vote separated what could have been a life in or out of the closet; a close call, so to speak. And the lawyer in me started to be curious. I wondered why the highest court of the United States would have a hard time seeing gays and lesbians as human beings when it is supposed to be a no-brainer question. The same inquisitive spirit that led me to represent unpopular clients like Napoles because the Libran in me, seeks to hear both sides and let the scales of justice decide could not be contained.

 

I was ready to call the four dissenters bigots and homophobes but before I can make such scathing pronouncement, I had to read their dissenting opinions. I already knew the dissenting arguments would not be on religious lines because US Supreme Court justices are heavily grilled on religious beliefs and any hint of bias was virtually fatal to assuming the position.

 

When I read the dissenting opinion, the gay in me cursed why I have to be a lawyer.

 

The dissenting opinions especially that of Justice Scalia and Roberts made very strong points. As a professor of Constitutional Law and Statutory Construction, I cannot in my professional opinion, ignore the very valid points being raised.

 

Their dissent usually started with a disclaimer, that, they are not anti-gay or do not really mind giving gays the right to marry. Scalia even went to the point in stating that it is not of importance to him what the law states about marriage.

 

What comes after is quite enlightening. The dissenter made a point of delineating judicial activism from judicial legislation. When the law is interpreted in a manner so advanced, it is ahead of its time; that is judicial activism.

Judicial activism interprets the law contrary to popular understanding but such interpretation is the intent of the framers.

Judicial legislation is when the judiciary comes up with an interpretation that adds something new to what was never there to begin with. Judicial legislation is when the judiciary (whose function is to INTERPRET the laws) usurps the power of the legislative (whose function to CREATE the laws) in contravention of the separation of powers.

 

The point of the dissent is that it is not in their place (nine lawyers who are not elected) to legislate for the people because that is the work of the legislative branch, consisting of members who are elected by the people and mandated by the Constitution to make laws. According to the dissent, when interpreting the laws or the Constitution, one will only deviate from the plain letter of the law if there is ambiguity. In this case, the 14th Amendment pertaining to the equal protection clause was interpreted in the context of marriage. 

 

Scalia stated that the equal protection should be interpreted based on the intent of the framers of the US Constitution. He argued that when the framers of the Constitution drafted the 14th Amendment, equal protection was not drafted to include marriage.

This has historical backing because marriage started as a result to a social need. Men had to make sure that women would be their own private sexual provider so he would be sure of the bloodline of his children. It was a chauvinistic concept that has only evolved towards male-female equality so much later in history.

In fact, it was organized religion that has institutionalized marriage as a sacrament (holy matrimony in the Roman Catholic Church) and a permanent union of a man and woman that is the symbol of love, unity, loyalty and the basis for the family.

In fact, the churches were the initial record keepers of marriages. It was only later that marriage became a matter of state in order to be assured rights for the married couples (Calvinist Theory). 

 

In short, when the framers wrote the 14th Amendment on equal protection, they were not presumed to know about gay marriage because marriage was between a man and a woman during those times. If they wanted additional liberties, there must be a law granting it (US states that allowed gay marriages will recognize same-sex marriages) and to states that do not have such law, it would be improper for five lawyers to legislate for them, the duty belongs the state legislature elected by the people for that purpose.

 

What is my position? If I were a heterosexual lawyer, I would definitely agree with the dissent.  If I were just a gay man, who loved another man that he wanted to marry him, the majority speaks what my heart yearns.

 

The problem is, I am a gay lawyer. And both gay and lawyer raised very valid points.

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Bruce Villafuerte Rivera is a lawyer, law professor, and member of the LGBT community.