On June 26, 2015 the US Supreme Court ordered every state in the United States to license and give legal recognition to same-sex marriage. They cast permanently into the dustbin the centuries old definition of marriage as a union between a man and a woman.
If there was a country that was going to be the first to legalise same-sex marriage it was going to be the US. However, they were beaten to the punch by Ireland whose voters had earlier decided at a referendum to legalise same-sex marriage.
Though it came first in time by at least a month, Ireland’s popular decision did not draw the same reactions as did the decision of the US Supreme Court. It is interesting, yet unexplained, why the decision of voters in Ireland, and the decision of five judges in the US, both leading to the same result, would have such diverse global reactions.
To say the US Supreme Court was itself strongly and sharply divided over the decision is an understatement. In the aftermath, the opinions of the four judges who disagreed with the majority five have received wider reading, attention and scrutiny.
The US is one of the most liberal countries in the world. For example, few countries, including Kenya, would twice vote in a President who is the first generation descendant of an immigrant. Their courts are as liberal and swift in protecting personal liberty, life and property. Long before the Supreme Court legalised same-sex marriage, it had declared unconstitutional any laws that criminalised same-sex intimacy.
The right to marry is one of personal choice. It is a constitutional right in itself, and an extension of the right to liberty and individuality. However, the right and liberty to marry is in many societies regarded and treated independently of the institution of marriage.
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. In forming a marital union, two people become something greater than they once were. No other social union is more profound. It embodies the highest ideals of love, fidelity, devotion, sacrifice and family. With it comes the right of procreation, and child-rearing.
The institution of marriage in most countries, including Kenya, is older than government. It is a legal, social and religious institution. The nine judges of the US Supreme Court differed sharply on whether it was an individual or his community who had the right to define marriage.
According to the five judges same-sex couples had been denied the benefits of opposite sex couples. Without the recognition, stability and predictability that marriage offers, their children have and would continue to be humiliated and suffer as their parents. For them the right to liberty went far beyond allowing same-sex couples to enjoy intimacy without the threat of criminal action or sanction. The right was incomplete, and their liberty hindered, if they were not allowed to marry like opposite sex couples.
If words could turn into swords the four judges in the minority would have slain the majority with the force and depth of their reasoning, anger and displeasure, and frustration at what they saw as the usurpation of the democratic rights of the people of the United States by five lawyers holding judicial office. The four judges felt that their five colleagues had undermined community and religious opinions and liberties that are a cornerstone of the institution of marriage. The four together held the strong opinion that the five “usurpers” should have left the choice of whether or not to redefine the centuries old institution of marriage to voters or their elected representatives. God Save America.
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