With 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.