In a narrow 5-4 decision, the US Supreme Court has ruled that the US Constitution guarantees a nationwide right to same-sex marriage.
Justice Anthony Kennedy, as expected, was the swing vote, joined by the liberal core of the court: Justices Ginsburg, Breyer, Sotomayor and Kagan.
He writes, “The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”
In his closing he writes: “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.”
Chief Justice John Roberts filed the main dissenting opinion in which Justices Scalia and Thomas joined. However, Justice Scalia and Justice Alito also filed separate dissents in which three justices – Scalia, Thomas and Alito – joined.
The ruling found: “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.”
The case arose when 14 same–sex couples, and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, “claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed.”
In his opinion, Justice Kennedy notes that, to the respondents, same-sex marriage “would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”
However, the petitioners counter, “Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”
Justice Kennedy writes, “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 we learn 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.”
Justice Kennedy writes, “This analysis compels the conclusion that same-sex couples may exercise the right to marry.” He bases it on four principles and traditions.
First, “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Second, “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
Third, “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” Finally, “Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”
“There is no difference between same- and opposite-sex couples with respect to this principle,” Justice Kennedy writes. “Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.”
“It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”
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 Antonin Scalia blasted the Court’s decision as a “threat to American democracy.”
“The substance of today’s decree is not of immense personal importance to me,” he wrote. “But what really astounds is the hubris reflected in today’s judicial Putsch.”
—David M. Greenwald reporting