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Words from Winterbilt

Same sex marriage-controversy or progress?

Shannon Bohrer

(11/2015) Historically people have always complained about the Supreme Court and decisions rendered. Recently the court ruled on the Affordable Health Care Act and we heard numerous complaints about that. The court also made a ruling on same sex marriage, in a roundabout way by allowing the lower court’s ruling to stand. We heard a lot about that ruling.

The recent history of the same sex marriage ruling goes back several years. In May of 2008, the California Supreme Court overturned state laws banning gay marriage. The decision was 4 to 3. Then in November of 2008 a ballot measure making same sex marriages illegal was passed by the voters. Then in 2009, the California Supreme Court upheld the same sex marriage ban. Are you confused yet? Forward to 2010, U. S. District Court Judge Walker struck down the ban as unconstitutional. An appeal took the ruling to the US 9th Circuit Court and a three judge panel agreed with Judge Walker’s ruling, striking down the ban on same sex marriages.

The proponents of the same sex marriage ban then appealed to the Supreme Court. At, it says the court was to rule on: "(1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case (the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case)."

The Supreme Court ruled in a 5 to 4 decision, that the proponents of the ban on same sex marriage had no standing to bring the case before the Court. The Supreme Court did not rule on the case itself, so the lower court decision to was allowed to stand, basically allowing same sex marriages to continue.

The court’s decision was almost expected; at least it was from the prediction experts. But that did not dissuade opponents from complaining, including Justice Antonin Scalia. Justice Scalia stated; "This case is about power in several respects," as part of his dissenting opinion, "It is about the power of our people to govern themselves and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case." It is my personal opinion, that he was unhappy with the court decision to not take the case. If - the court had taken the case and agreed with the petitioners, banning same sex marriages, would we say that a conservative court is expanding the federal authority over state’s rights? I guess it depends upon where one stands and their perspectives?

Associate Justice Elena Kagan said: "Suppose a state said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?" I assume that there was more to this argument, but it might demonstrate the diversity of views and divide with this issue.

Then we had the incident(s) with issuing same sex marriage licenses in Kentucky. Mrs. Kim Davis, the court clerk in Rowan County Kentucky, refused to issue marriage licenses to same sex couples. It was widely reported that she did so for religious reasons and she, and many others, claimed religious persecution. She was cited in Federal court and spent time in jail. Her defenders were very vocal about her religion and her freedom to practice her religious beliefs. According to Mrs. Davis, issuing a marriage license to a same sex couple would violate her belief in God’s law. Mrs. Davis and her defenders say the issue is about religious freedoms?


We do have the freedom of religion in our country which allows one to practice their faith. The first amendment to the Constitution gives us religious freedom, along with other freedoms. The religious freedoms reads:"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …" It is easy to read, the government does not have a religion that they endorse (the separation of church and state) and you can practice the religion of your choice. However, if the practicing of a religion infringes on the rights of others how do we resolve the conflict? Remember, one of the factors the Supreme Court was to examine in the case was a clause in the Fourteenth Amendment; the Equal Protection Clause. "…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

So… while Ms. Davis has the right to practice her religion I don’t believe she has the right to not follow the law. Remember, the right to practice your faith is just that, a right. If we, as a country want our religion to be our laws, then we have a theocracy – and we do not. The founders of our country expressly did not want a state religion, as evident by the first line in the First Amendment; "Congress shall make no law respecting an establishment of religion…." When the Constitution was created, the representatives would not pass and sign it without the first ten amendments. A somewhat related issue is that Maryland is called the "Free State", because Catholics were allowed to practice their religion in the colony, before the United States and the Constitution existed. Imagine that!

The First Amendment has other freedoms of importance. The freedom of speech, freedom of the press, the right to assemble and the right to petition the government. Can the defenders of Ms. Davis gather and show their support for her – yes. Can they petition the government to change a law, yes? Are there limits to free speech, yes? This issue is just one of many that make us a diverse nation and I do think that diversity can be a good thing. In many ways the diversity of this county made it great.

If - Mrs. Kim Davis, the court clerk in Rowan County Kentucky, refused to issue same sex marriage certificates because of her religious beliefs and she was a Hindu, a Muslim or a Buddha, would she still have the same defenders? Can one use their religion to basically dictate to others, what freedoms they can enjoy? No, they cannot. If one’s religious beliefs conflicts with their government position, you can change employment. We are a nation that believes in law and order and as the famous inspector Javert said: "I am the law and the law is not mocked" The Constitution does not limit your freedoms, it protect them.

Read other articles by Shannon Bohrer