The Judgment Of Obergefell V. Hodges And The Philosophical Foundations Of Same-Sex Marriage

By a process of skilful legal engineering, reminiscent of the ‘Warren Era’, i.e. (the period of American Supreme Court presided over by Chief Justice Earl Warren), the majority, gave an expanded and comprehensive definition of ‘marriage’ by taking recourse to the principle of continuity and change and the doctrine of ‘ the felt necessities of the times’. The minority view however, dissented and agreed with the conclusions of the Court of Appeals and held that the issue of same-sex marriage be left to the wisdom of the legislature and referred to the views of Alexander Hamilton contained in the Federalist Paper No.78.

The majority opinion was grounded on four compelling considerations. The first, (a) the right to personal choice regarding marriage is inherent in the concept of individual autonomy and that like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make and further it would be contradictory to recognise a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. Secondly, marriage supports a two-person union unlike any other in its importance to the committed individuals. Thirdly, marriage safeguards children and families and the related rights of childbearing, procreation and education. By giving recognition and legal structure to their parents’ relationship, marriage allows children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Fourthly, marriage is a keystone of any social order and the right to marry is fundamental both as a matter of history and tradition as well as a better informed understanding of how constitutional imperatives define a liberty that remains urgent in modern times.

In both the majority and minority opinions of the case there are large references to judicial precedents and various other constitutional principles. The present exercise however, is not intended to analyse or examine the same. It is an excursion into the philosophical principles which appears to have underlined and provided justification for same-sex marriage of the majority -- the rise and growth of American Liberalism i.e. the inalienability and inviolability of fundamental individual liberty and basic freedom with which every individual is born.

In the context, an overview of the development of the concept of liberty from the times of ancient Greece and Rome to present day would be instructive. Protagoras, the pre-Socratic Greek philosopher and a die-hard Sophist in his book ‘TRUTH’ highlighted the centrality of the individual and wrote ‘of all things the measure is man of those that are, that they are, and of those they are not that they are not’ and that ‘laws are made for men and not men for laws’. Lockean liberalism which is the cornerstone of the American Constitution elaborated further upon this theory and declared that every individual is born with a set of Natural Rights i.e. right to life, liberty and property and these rights cannot be whittled down, abridged or abrogated by the state or society. it appears that the majority view in the judgment elevated the right to marriage as an implied Natural Right, although, the said right is not expressly mentioned in the Constitution. Lamentably however, in the majority judgment of Obergefell vs. Hodges there is no reference or analysis to the philosophical principles i.e. the ground norms concerning individual liberty and fundamental freedoms of the individual. There are references to the writings of philosophers like Cicero, Confucius, John Locke, William Blackstone and Alex de Tocqueville both in the majority and minority opinions of the court. The said references however, only dwell upon the concept of ‘Beauty of marriage’ and the relevance of the age-old institution of marriage to the society. There is no reference or analysis however, to the ‘Essays’ of the philosopher John Stuart Mill who in the introduction to his book ‘Essays on Liberty’ had said ‘over himself, over his own body and mind the individual is sovereign’. Drawing a distinction between what Mill calls ‘self-regarding’ and ‘other regarding’ actions of the individual he holds that in the sphere of self-regarding action there should be minimal state interference. In relation to other regarding actions the state or laws can interfere only when there is positive and demonstrable harm to the society. Elaborating further on his ‘harm principle’ Mill holds that at times society can also tyrannize without using political means. The power of public opinion can be more stifling to individuality and dissent than any law could be. Thus, Mill was of the view that there must also be protection for people against the prevailing public opinions, and the tendency of society to impose its values on others. Additionally, in certain situations individuals can question the imposition of public opinion on social standards. They can question what things society should like or dislike, not the more general question of whether society's preferences should be imposed on others.

Mill divides the appropriate sphere of human liberty into three categories, claiming that any free society must respect all three. First, there is the domain of the conscience, and liberty of individual thought and opinion. Second, there is planning one's own life, and the liberty of tastes and pursuits. Third, there is the liberty to unite with other consenting individuals for any purpose that does not harm others. These liberties reflect the idea that true freedom means pursuing one's own good in one's own way, as long as it does not prevent others from doing the same. These ideas of the individual may at times directly contradict society's increasing tendency to demand conformity, and unless moral conviction turns against this tendency, the demand for conformity will only increase.

Expanding further on these principles of J. S. Mill, as contained in his book ‘Essays on Liberty’, Thomas Hill Green the great English philosopher and a member of the British Idealism Movement, also held that society is as necessary to form persons as persons are to constitute society and social union is the indispensable condition of the development of the special capacities of its individual members and human self-perfection cannot be gained in isolation. The role of the state should be confined to foster and protect the social, political and economic environments in which individual will have the best chance of acting according to their consciences. The role of the state should be ‘to hinder the hindrances’ and its duty should be not only to prevent unwarranted intrusions into individual freedom but to promote them. This concept of positive liberty is the true meaning and content of not only political liberty but also social and cultural liberty.

American liberalism, especially social and cultural liberalism, which appears to be the basic structure of the Obergefell Vs. Hodges judgment also seems to have been inspired by the writings of Thomas Paine who is acknowledged to be one of the Founding Fathers of the American Constitution. In his book RIGHTS OF MAN Paine wrote ‘it is a perversion of terms to say that a charter gives rights. it operates by a contrary effect—that of taking rights away. rights are inherently in all the inhabitants; but charters, by annulling those rights, leave the right, by exclusion, in the hands of a few ... they ... consequently are instruments of injustice ... the fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist’

It is manifest that in the judgment of Obergefell Vs. Hodges the majority while recognizing the concept of ‘ordered liberty’ i.e. a legal term that identifies the need in civil society to reconcile the societal order with individual freedom has drawn the line and held the balance to be tilted in favour of the individual. Doing otherwise would in the words of Thomas Paine amount to “pitying the plumage but forgetting the dying bird”

The author is a Senior Advocate at the Supreme Court of India. Views are personal.