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Monday, December 5, 2016

In a historic decision, the Supreme Court issued a ruling in favor of plaintiffs, LGBT activists, and marriage equality throughout the nation Friday morning, determining that same-sex couples have a constitutionally enshrined right to marry each other, and to have that marriage recognized everywhere in the U.S.

The 5-4 majority ruling was authored by moderate-conservative Justice Anthony Kennedy, joined by the Court’s four liberal Justices: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

The opinion of the Court, delivered by Justice Anthony Kennedy, held that the “right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”

There were two questions at issue in Obergefell v. Hodges, which combined four cases challenging same-sex marriage bans in four different states: first, whether the states are required to grant equal marriage rights to same-sex couples; and second, whether states are required to recognize legal same-sex marriages performed in other states.

Kennedy’s opinion located the ruling in the long history of the evolving nature of marriage. Marriage, Kennedy wrote, “has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.”

Kennedy wrote further:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived.

[…] The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. […] There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.

In an apparent rebuke to arguments that same-sex marriage was harmful to children, the opinion went on:

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. […] There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.

Chief Justice John Roberts authored the main dissent, in which he maintained that petitioners made “strong arguments rooted in social policy and considerations of fairness,” but that the Court did not have the right to dictate what the laws governing marriage should be:

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition

[…] Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Justice Scalia wrote a separate dissent “to call attention to this Court’s threat to American democracy,” which concluded:

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. […] With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

When the case was argued before the Supreme Court in April, Justice Anthony Kennedy asked plaintiffs why the Court should try to upend what he characterized as the solidity of marriage, defined for “millennia” as existing between a man and woman.

“It’s very difficult,” Kennedy said at the time, “for the Court to say, ‘Oh well, we know better.’”

Chief Justice John Roberts posited that plaintiffs had been intending to redefine “marriage” rather than join it. He stressed that every definition of the word he had found explicitly indicated that marriage was between a man and a woman.

Justice Samuel Alito raised the issue of polygamy, and Justice Antonin Scalia expressed concern that, if gay marriage became a constitutional right, ministers would lose the right to refuse to officiate ceremonies on religious grounds.

This is the latest in a long line of landmark decisions extending rights to gay Americans, which includes, most recently, Lawrence vs. Texas in 2003, in which the Court found that sodomy laws violated constitutional rights of liberty and privacy, and U.S. vs. Windsor in 2013, when the Court struck down the Defense of Marriage Act.

The opinion of the Court issued Friday morning concluded:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

[…] It is so ordered.

Photo: Pro and anti-gay marriage demonstrators rally outside the U.S. Supreme Court as it hears arguments on the question of same-sex marriage on Tuesday, April 28, 2015, in Washington, D.C. (Brian Cahn/Zuma Press/TNS)

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