Supreme Court Strike Down Marriage Bans Nationwide

Jim Burroway

June 26th, 2015

Justice Anthony Kennedy wrote the 5-4 decision striking down bans against marriage equality across the nation. Gay and Lesbian couples now stand as equals before the law with their heterosexual friends and relatives in every respect. In the lead case of Obergefell v. Hodges, the U.S. Supreme Court overturned a Sixth Circuit Court of Appeals decision upholding marriage bans in four states. From the syllabus:

(p1): Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

(p4): …The right of same-sex couples to marry is also derived fromthe Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause;and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments frommarrying.

“Traditional marriage” is both timeless and constantly changing, as are attitudes towards gay people. From the majority opinion:

(p6): The ancient origins of marriage confirm its centrality, but it 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. For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000); S. Coontz, Marriage, A History 15–16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage overthe past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).

These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.

This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.

…This Court first gave detailed consideration to the legal status of homosexuals in Bowers v. Hardwick, 478 U. S. 186 (1986). There it upheld the constitutionality of aGeorgia law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans, 517 U. S. 620 (1996), the Court invalidated an amendment to Colorado’sConstitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that lawsmaking same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575

In discussing the Due Process aspects of the case, Kennedy tackles Scalia’s beloved “original intent” arguments:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as welearn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Kennedy reaffirmed the court’s finding in Loving v. Virginia, which struck down bans on interracial marriage, that marriage is a fundamental right. He also reaffirmed his eloquent statement in Windsor about the profound meaning marriage has for the children of same-sex marriages:

(p15): Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing theirfamilies are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents,relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue herethus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___ (slip op., at 23).

 

(p17): There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue oftheir exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to aninstability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriageall the more precious by the significance it attaches to it,exclusion from that status has the effect of teaching thatgays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them outof a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes ofmarriage and seek fulfillment in its highest meaning.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right tomarry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples fromthe marriage right impose stigma and injury of the kind prohibited by our basic charter.

(p18): The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based ondecent and honorable religious or philosophical premises,and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes en- acted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sexcouples, and it would disparage their choices and diminishtheir personhood to deny them this right.

Kennedy also gave a nod to some of the fear-mongering among marriage quality opponents, who have falsely claimed that churches will be “forced” to marry same-sex couples:

(p27): Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to theirlives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on thesame terms as accorded to couples of the opposite sex.

He concludes:

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 dorespect 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.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

MattNYC

June 26th, 2015

Justice Antonin Scalia said he is not concerned so much about same-sex marriage, but about “this court’s threat to American democracy.”

Yes. This court which continues to equate money to speech and to consider corporations as persons is a MAJOR THREAT to our Democracy.

MattNYC

June 26th, 2015

Have a nice F*cking weekend, a**hole…

MattNYC

June 26th, 2015

(aimed at Scalia)

Timothy Kincaid

June 26th, 2015

We were overly optimistic and thought it would be 6-3. But I’ll celebrate every bit as much as if it were 9-0.

Congratulations, kids. Today really does change everything.

It changes the way parents see their children’s future (and you better believe that Moms will be demanding wedding plan rights), the way that young gay people see themselves, and even the way in which our community moves forward.

Eric Payne

June 26th, 2015

Living in Georgia, just yesterday I was mrried… but unmarried. Today, I’m married.

I feel just like I did in Boston five years ago, when I looked into Bill’s eyes, and promised to love and cherish him, above all others, for all the days of my life. The way I felt, then, is the way I feel now… that promise I made is easy to keep.

I was actually on the phone with my husband as SCOTUSblog revealed the opinion. Yesterday, using the term “husband” at our favorite Mexican restaurant as we celebrated our 20th anniversary was almost activism… today, it’s merely a statement. I have a husband. Not a partner. Not a lover. Not a longtime companion. Though he is all that… he is all that, ad a single noun encompasses it all.

Marcus

June 26th, 2015

Looks like I was wrong to think Roberts, at least, didn’t harbor deep animosity to same-sex marriage, as he chose to read his dissent from the bench. I wonder what the antidiscrimination activists who he worked with (and was praised by) in the Romer case would say about that?

But even 5-4 wasn’t in the realm of plausibility just ten years ago. It’s hard to believe it’s real.

Mark F.

June 26th, 2015

I don’t think that everyone who thinks the matter should be left to the states is a bigot, I just don’t think their argument is very good.

Richard Rush

June 26th, 2015

Mark F., there is a way to determine the level of bigotry among those who think the matter should be left to the states. . . . Just ask them if they would jump at the chance to have a Federal marriage amendment. I suspect that the vast majority would respond, “How high?!”

Marcus

June 26th, 2015

@Mark F: I agree, and I admit I’m making an assumption about Roberts. It’s just surprising that he chose this, of all cases, as his first-ever oral dissent (according to Scotusblog).

Marcus

June 26th, 2015

@Richard Rush: I haven’t found a recent FMA poll, but as many anti-same-sex-marriage, conservative politicians have backed off the idea, I suspect it’s no longer popular even among their voters.

Timothy Kincaid

June 26th, 2015

Richard,

their position is “I believe in states’ rights unless I can force my positions on states that disagree”

my position is “I believe in states’ rights, but individual rights trump government at any level”

SharonB

June 26th, 2015

You should read some of Thomas’ dissent. Claims that in slavery, internment camps, and denying benefits the government of the United States did not and does not take away human dignity. What a POS!

BradFagan

June 26th, 2015

My eyes are still cheerfully filled with tears after seeing today’s SCOTUS decision affecting same sex marriage across the entire country. As a man born in the ’60’s who came of age in the dark days of AIDS, this decision never seemed possible to me.
Fear, hatred and segregation have always been placed ahead of acceptance of our differences, respect for the beliefs of others and fairness in treatment by our federal and state governments. Our country is often defined by the Constitution’s “sound-bites”; ‘The separation of church and state’ and ‘Equal protection under the law’. But religious beliefs have always colored court decisions and the laws enacted ever since those words were put to paper. Today we see our highest court take a pause from perpetuating that error.
My heartfelt congratulations go to every American who stands today in celebration of their love for their partner, and their marriage, regardless of sexual orientation.

Marcus

June 26th, 2015

@Sharon: Maybe I’m a POS, but I support the idea that people have dignity even when that dignity isn’t respected by the government, just as the right to equal treatment exists as a moral right even when the government doesn’t respect it. That doesn’t excuse indignities, it condemns them.

@BradFagan: The momentousness didn’t fully sink in until I read your comment. Thank you.

Lord_Byron

June 28th, 2015

So,have you guys picked out a nice boxturtle to marry? XD After all the nuts are absolutely sure that marriage to animals will be next.

MattNYC

June 29th, 2015

I still shake my head in wonder that the four Luddites still believe that human/civil rights should be put to a popular vote.

I don’t recall all of the details, but I remember hearing a few years back that in several states a majority were STILL against interracial marriage, decades after Loving. So that’s an awful idea.

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