Jim Obergefell is the successful plaintiff in the case where the Supreme Court invented a constitutional right to same sex marriage. Eric Murphy is a lawyer who, in his capacity as Solicitor General of Ohio, argued against inventing such a right.
President Trump has nominated Murphy for the Sixth Circuit Court of Appeals. Sen. Rob Portman, one of Murphy’s home state Senators, backs the nomination, even though Portman supports same sex marriage.
The Washington Post has published an op-ed by Obergefell blasting Murphy and criticizing Portman for supporting him. The op-ed displays ignorance and arrogance in equal measure.
According to Obergefell, Murphy “argued that my marriage in unconstitutional.” Murphy made no such argument.
His contention was that the constitution creates no right to same sex marriage. This doesn’t mean that same sex marriage is unconstitutional. If the appropriate legislative body had approved of same sex marriage, instead of barring it as Ohio did, the marriage would not have been problematic.
In short, Obergefell’s marriage was neither mandated nor prohibited by the constitution. And because it wasn’t mandated by the constitution, it wasn’t unconstitutional for the state not to recognize it. Or so the argument went.
Murphy’s other sin was using “dog whistles such as ‘traditional marriage’ in his brief.” Obergefell doesn’t bother to explain what improper signal “traditional marriage” sends. The term merely indicates that marriage traditionally has been considered to be between a man and a woman. Obergefell might not like this fact, but it’s indisputable.
Obergefell grudgingly recognizes that Murphy, as Ohio’s Solicitor General, was required to defend the law against same sex marriage. Thus, he offers Murphy a way to atone for his non-sin of defending that law. He insists that Murphy affirm that the Supreme Court got Obergefell’s case right and that “discrimination against the LGBTQ community would have no place in his court room.”
But the legality of same sex marriage has no claim to be a litmus test for court of appeals membership. Four Supreme Court Justices think Obergefell was wrongly decided, as do a number of court of appeals judges — those who ruled the other way before the Court handed down its landmark decision.
Murphy is obligated to follow the law as laid down in Obergefell, but not to agree with the decision. Anyone who doesn’t understand this shouldn’t be having his op-eds published.
Obergefell’s demand that “discrimination against the LGBTQ community have no place in [Murphy’s] court room” also betrays ignorance. As a judge, Murphy’s obligation will be to treat all litigants fairly, regardless of sexual preference, etc., and to strike down those discriminatory acts that violate the law. Equally, he will be obliged to uphold actions the LGBTQ community considers discriminatory if the law does not prohibit them.
The gay rights movement has made substantial contributions to America, making us a fairer and more humane nation. However, there’s an authoritarian strain to movement as it exists today.
Obergefell’s op-ed comes from that strain. It’s a demand that a judge confess to an error he may not believe he committed and that he ignore his duty to follow the law and instead pledge fealty to a particular movement’s agenda and party line.
The op-ed is too poorly argued to have merited a place in the op-ed page of a supposedly respectable newspaper. But its placement there has the virtue of highlighting the authoritarianism lurking in the contemporary gay rights movement.