I remember that the first time I heard the word “gay,” I didn’t know its actual meaning. I thought that it just meant dumb, because that’s how I had heard it used. In response to rules, tests, and restrictions, my elementary classmates would say “that’s so gay”. So when I first heard the word in its actual context, I was confused. The connotation I’d come to relate to it was objectively negative and hard to shake. The implicit cultural bias against the LGBTQ+ community is an issue for another day, though, because I also remember when the Supreme Court decided Obergefell v. Hodges. At the time, I couldn’t recognize the case by name; I only knew that gay marriage had become legal.

I was in West Virginia, a place not often acknowledged as a hub for gay rights, and saw rainbow flags flying all around. Although I myself am a cis-white male, the Supreme Court ruling seemed right, humane even. Not everyone agrees with me, though. While the stereotypical anti-gay argument often involves the Biblical city of Sodom and its gay residents who were punished with “eternal fire” for “indulging in sexual immorality and pursuing unnatural desire” (Jude 7), some instead are simply opposed to the constitutionality of the Obergefell decision. So, in this edition of Turncoat, I’ll be shedding my normal pro-LGBTQ+ opinions and attempting to dissect the judicially-based legalization of gay marriage. Without further ado, please enjoy.

It’s hard to be perfect. It’s hard to not make mistakes. In our daily lives, everyone makes them, but that isn’t necessarily a bad thing. As the prophetic Batman movie once said, “Why do we fall sir? So that we can learn to pick ourselves up.” Behind the painfully cheesy quote, there is actually a half-decent message: learning from our mistakes is key.

Something like this is specifically true when failure to do so can have long-term and widespread consequences. The Supreme Court case of Obergefell v. Hodges, which legalized gay marriage, is one such situation. On June 26, 2015, the Supreme Court ruled in favor of the three petitioners, who argued that restricting access to marriage based on sexual orientation is unconstitutional. The Court decided that certain states were denying gay citizens access to benefits that were guaranteed in the Constitution—specifically those found in the Fourteenth Amendment, which states that “no State shall deprive any person of life, liberty, or property, without due process of law.” According to the petitioners, marriage falls within the confines of these rights, and denying them access thereto deprived them of due process and equal protection under the law.

There are two main flaws with the petitioners’ argument, one involving the claim of due process and one involving the case itself. Firstly, the claim of a lack of due process is the bastard child of a false rhetoric. Obergefell v. Hodges is not the first court case, in the Supreme Court or otherwise, regarding gay marriage. The issue of LGBTQ+ rights came to the forefront in our country during the 1960s, when the civil rights movement helped kickstart the pursuit for equal rights across the board. Since then, the Supreme Court has seen multiple cases regarding the subject of gay marriage. In 1972, the case of Baker v. Nelson was presented to the Court, which dismissed the case “for want of a substantial federal question.” In 1986, the Court considered Bowers v. Hardwick, a case regarding the constitutionality of a Georgia law which criminalized homosexuality. The decision in this case, originally upholding the law, was later overturned in 1996.

The point of this is not to argue in favor of the criminalization of homosexuality, but rather to point out the significant amount of attention that the issue of gay marriage has received. Regardless of whether or not marriage is a fundamental right—and even that is up for debate—there has been due process regarding the subject; the aforementioned cases prove that, but they also point to lack of constitutionality in the making of the Obergefell decision itself.

In Baker v. Nelson, the decision was based not on the actual issue of gay marriage but rather on the fact that the case was not fit for the Supreme Court. The Bowers v. Hardwick case, however, was appropriate for the Court as it was a review of a specific, nationally impactful law. This has been the purpose of the Supreme Court since its inception with the Judiciary Act of 1789. It is meant to interpret the law, not to make the law. With their decision in Obergefell v. Hodges, the justices who joined the majority opinion put their own morals above the system of the federal and state governments. Laws should be established through the democratic system that our founders fathers established, not through an assumed power given to judges.

The Court made a mistake in Obergefell. It chose what they thought was right instead of what was constitutionally sound, and in doing so it set a dangerous precedent. With Obergefell, the Supreme Court assumed a power that it was not meant to have—a power to design the law for federal and local governments alike. This isn’t about whether or not being gay is wrong, it’s about the constitutionality of the case being more important than morals. Proponents of gay marriage have a right to voice their opinion, and have a right to vote accordingly, but neither they nor the Court have the right to disrupt the democratic system which has served us well for over 200 years. The legality of gay marriage should be determined through traditional methods: voted on by the people, not by a simple majority of five justices who sit on the Court.  

To LGBTQ+ rights activists: This is America, a nation that prides itself on being a melting pot of ideas, races, religions, and sexualities. So please, continue to fight for your beliefs, but do so through the proper channels. Bring a vote to your state congress, petition local politicians, elect people who you see improving upon the countries existing infrastructure. Otherwise, dangerous missteps like those made in Obergefell v. Hodges will undermine our democracy.