The article you’re about to read is from our reporters doing their important work — investigating, researching, and writing their stories. We want to provide informative and inspirational stories that connect you to the people, issues and opportunities within our community. Journalism requires lots of resources. Today, our business model has been interrupted by the pandemic; the vast majority of our advertisers’ businesses have been impacted. That’s why The Capistrano Dispatch is now turning to you for financial support. Learn more about our new Insider’s program here. Thank you.

Straight Talk by Al Jacobs
Straight Talk by Al Jacobs

Understanding the Constitution: Is same-sex marriage a constitutional right? It depends on the justices you ask.

By Al Jacobs

On the matter of same-sex marriage, the U.S. Supreme Court has spoken. In a 5-4 decision, the justices affirmed the constitutional right that couples of the same gender can be legally wed. Supporting that position is Associate Justice Anthony Kennedy who said: “No union is more profound than marriage … They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” In opposition is Chief Justice John Roberts, who declared: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. But do not celebrate the Constitution. It had nothing to do with it.”

Long before any arguments were presented, eight of the nine court members, in keeping with their political inclinations, had developed unshakable opinions on this matter. Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagin fervently supported same-sex marriage; Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts were unalterably opposed. It was clear that the one ambivalent member, Anthony Kennedy, would decide its fate.

There’s nothing new here. This is the way the court rules—and has always ruled. Each of us harbors our preferences and prejudices. When appointed to the bench and donning the black robe, our biases go along as part of the package. As for Constitutional rationale, it’s customarily made up along the way. Whether, for example, you may share the blessings of holy matrimony with only a member of the opposite gender, a member of the same gender, or your Irish setter, will depend upon the collective opinion of those anointed to so rule.

In an earlier century, then-Chief Justice Charles Evans Hughes summed up the matter reasonably well when he declared, “We are under a Constitution, but the Constitution is what the judges say it is.” With a bit more accuracy, he might have said: “The Constitution is, at any point in time, what a majority of the judges say it is, until a new majority chooses to say something differently.”

Al Jacobs of Dana Point is a professional investor for nearly a half-century. He issues a monthly newsletter in which he shares his financial knowledge and experience. You may view it at


Trustworthy, accurate and reliable local news stories are more important now than ever. Support our newsroom by making a contribution and becoming a subscribing member today.

About The Author Capo Dispatch

comments (3)

  • I would have to disagree with Justice Roberts. Article 1 of the 14th amendment is pretty clear — i.e. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.”

    My advice, if you’re against marrying someone of the same sex, DON’T.

  • I would agree with the premise of your opinion piece. What has always struck me is the hypocrisy of someone like Scalia who claims to interpret the Constitution based on its “original meaning” but invariably injects his own political beliefs and conservative views into rulings. The “original meaning” of the second amendment has to be interpreted based on the issues and gun technology that was available at the time the second amendment was written. You want to possess a flint rock rifle where you have to load each shot with gun powder, cotton, rifle ball, tamp well, charge the flint, aim and fire? By all means. But you stretch that right to say that John Adams and Benjamin Franklin absolutely wanted every man, woman and child to be able to walk into a store and walk out 5 minutes later with an automatic weapon that can fire 180 rounds a minute with the pull of a trigger? Give me a break!

  • Well said, Trent, but I think he was talking about same sex marriage–i.e.: “As for Constitutional rationale, it’s customarily made up along the way. Whether, for example, you may share the blessings of holy matrimony with only a member of the opposite gender, a member of the same gender, or your Irish setter, will depend upon the collective opinion of those anointed to so rule.”

    You, on the other hand, are talking about that pesky 2nd amendment. In the early days of this country there was ample reason for everyone to own a gun. If it wasn’t the British, it was those unruly savages that were angry because we were stealing their land, and making them sick. We were “God’s chosen and this land was ours for the taking, and so we took it with our “germs, guns and steel.”

    Today is a different story though, as you point out. We have automatic weapons that can kill hundreds in a matter of minutes, and the NRA believes we have a Constitutional right to own as many as we want. The NRA owns Congress and most of the legislatures, and hell will freeze over before we have a intelligent discussion on how to write a law that protects everyone without violating our so-called 2nd amendment rights.

comments (3)

Your email address will not be published.

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>