marriage equalityWith drama and historic significance, the US Supreme Court held today that same sex couples have a Constitutional right to marry. In so doing, they held that state bans against same sex marriage are unconstitutional. They also held that states must recognize marriages from other states.

Technically, the decision won’t take effect until the mandate issues – which takes about two weeks – but States are free to implement the result sooner.

Justice Anthony Kennedy wrote for the majority opinion, with a 5-4 split. The significance of Kennedy’s opinion will be remembered in history. Justice Kennedy wrote Lawrence v. Texas, decriminalizing homosexual conduct on June 26, 2003, as well as US v. Windsor, holding portions of the federal Defense of Marriage Act unconstitutional, on June 26, 2013. This decision, on June 26, 2015, will likely make Justice Kennedy a hero in the LGBT community.

The majority bases its conclusion that same-sex marriage is a fundamental right on “four principles and traditions”: (1) right to personal choice in marriage is “inherent in the concept of individual autonomy”; (2) the right to marry is fundamental because it supports a “two-person union unlike any other in its importance to the committed individuals”; (3) marriage safeguards children and families; and, (4) marriage is a keystone of our Nation’s social order.

Some quotes from the opinion:

“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.”

“This history of marriage is one of both continuity and change…. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.”

“The Fourteenth Amendment requires a State to license a marriage between two people of the same sex.”

“The marriage laws at issue thus harm and humiliate the children of same-sex couples.”

“When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

“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 character protecting the right of all persons to enjoy liberty as we learn its meaning.”

“Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”

“Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

“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.”

“Marriage also affords the permanency and stability important to children’s best interests.”

“Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.”

From the concluding paragraph of the majority opinion: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Each of the 4 dissenting justices wrote separate dissenting opinions, each scathing in its own right.

The Chief Justice has the principal dissent, which is 31 pages long. Toward the end of it, he says, “If you are among the many Americans–of whatever sexual orientation–who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

Justice Scalia’s dissent leads off by saying that the decision is a “threat to American democracy.” He concludes by saying that “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 not based on law, but on the ‘reasoned judgment’ of a bare majority of this Court–we move one step closer.”

Justice Thomas’ dissent takes issue with the law of substantive due process generally and concludes by stating that the majority’s conception of liberty will have “inestimable consequences for our Constitution and our society.”

Justice Alito’s dissent expresses a fear that today’s decision will cause anybody who opposes same sex marriage to be vilified and branded as bigots.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.