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From Loving, To Windsor, To Obergefell, Liberty And Equality Prevail At The Supreme Court

Rainbow Map

As James Joyner has already noted, today the Supreme Court held, relying on both the string of gay rights cases that began in 1996 with Roemer v. Evans and the Court’s landmark decision striking down laws barring interracial marriage in Loving v. Virginia, that states must recognize and license marriages between same-sex couples, bringing to an end a two decade long social, legal, and political debate:

WASHINGTON — In a long-sought victory for the gay rights movement, the Supreme Court ruled on Friday that the Constitution guarantees a right to same-sex marriage.

Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.

The decision, the culmination of decades of litigation and activism, came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of same-sex marriage.

Justice Kennedy said gay and lesbian couples had a fundamental right to marry.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”

“It would misunderstand these men and women to say they disrespect the idea of marriage,” Justice Kennedy said of the couples challenging state bans on same-sex 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 G. Roberts Jr., in a dissent joined by Justice Antonin Scalia and Clarence Thomas, said the Constitution had nothing to say on the subject.

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “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.”

In a second dissent, Justice Scalia mocked Justice Kennedy’s soaring language.

“The opinion is couched in a style that is as pretentious as its content is egotistic,” Justice Scalia wrote of his colleague’s work. “Of course the opinion’s showy profundities are often profoundly incoherent.”

In many respects, of course, this outcome is entirely unsurprising. For twenty-one years now, the Supreme Court has expanded the legal protections that are granted to gay and lesbian Americans. In Roemer v. Evans in 1996, the Court struck down a Colorado law that barred individual cities and localities from passing laws extending civil rights protections to their gay and lesbian citizens. Seven years later, the Court reversed its own 1986 decision in Bowers v. Hardwick and ruled that laws making sodomy a criminal act were unconstitutional as well. While this was going on, there were other political and legal battles going on at the state level. When the Hawaii Supreme Court threatened to issue a ruling that found a right to same-sex marriage, the legislature there responded by changing the law to define marriage as being between a man and a woman. Nationally, the action in Hawaii led to the passage of the Defense of Marriage Act, which defined marriage for Federal purposes as being between a man and woman and gave states the right to refuse to recognize same-sex marriages in in other states. Other states followed Hawaii’s, and by 2004 the political momentum was strongly on the side of the “traditional marriage” movement that it played a major role in the 2004 Presidential Election. Slowly but surely, though, the tide began to turn at the state level as courts in states such as Massachusetts and Iowa found that their state Constitutions required the recognition of same-sex marriages. Additionally, there was progress at the legislative as states, mostly in New England, legalized same-sex marriage through legislative means. Meanwhile, polling slowly began to show social acceptance of homosexuality in general, and same-sex marriage specifically.

The turning point, one could argue came roughly in 2012 as President Obama began his quest for re-election. Prompted in part by comments made by the Vice-President on Meet The Press, President Obama came out publicly in support of same-sex marriage just as North Carolina voters had approved what came to be the final law banning it passed in the United States. At the same time, the Defense of Marriage Act was being challenged in Federal Courts around the country. A year before, the Justice Department had announced that it could not in good faith defend the Constitutionality of the Defense of Marriage Act in court. That decision proved to be both controversial and prophetic, because it was two years ago today that the Supreme Court held that the provisions of the Defense of Marriage Act defining marriage were unconstitutional. On the same day, the Court had passed on ruling on the merits of state laws dealing with marriage, but the ruling in the DOMA case set off a judicial firestorm across the nation that brought us today as Court after Court found that state laws against same-sex marriage were unconstitutional. At the same time, public acceptance of marriage rights had become so widespread that legislative progress was possible as well and state after state joined in on changing their marriage laws to allow same-sex marriage.  Back in October, a group of cases in which state law bans against gay marriage had been struck down made their way to the Court, but the Court refused to accept those cases, which meant that eventually more than twenty-five states found themselves required to recognize same-sex marriage. The momentum continued after that, but it seemed at that point in early October that today’s outcome was inevitable. So, when the Sixth Circuit became the first Federal Circuit Court of Appeals to uphold laws barring same-sex marriage, we knew that the Court would be required to accept the appeals and this day would come.

Unlike James, I tend to think that the Court’s decision here was far less activist than the conservatives who are already decrying it will make it out be. Justice Kennedy’s majority opinion borrows heavily from Loving v. Virginia and its holding that marriage is a fundamental right protected by the Constitution and that the 14th Amendment bars states from passing laws that bar certain types of marriage for irrational reasons. Additionally, for twenty years now, the law has recognized that the rights protected by the Fourteenth Amendment mean that governments cannot discriminate against people merely because they are gay or lesbian. Considering the fact that this process started just ten years after the Court had ruled that it was acceptable for a gay man to be prosecuted for having consensual sex in his own home, the change was important but it was also correct. In each of these gay rights decisions, all of which were written by Justice Kennedy, the Court recognized that denying equal treatment under the law to gays and lesbians deprived them of the equal dignity that the Amendment was intended to create. Indeed, in these two paragraphs from his opinion today, Justice Kennedy seems to tie together Loving’s holding that marriage is a fundamental right and the string of opinion that begin in 1996 with Roemer

 The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

(…)

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.

Contrary to the views of the Court’s conservatives, the protections of the Fourteenth Amendment were obviously never meant to be set in stone as what they were when the Amendment was ratified. If that were what the drafters of the Amendment intended, then they would have drafted a far more restrictive document that restricted its application to African-Americans. They did not do so, though, they wrote an Amendment that provides that all Americans are entitled to the same protections of life, liberty, and property and entitled to same equal protection of the laws. Specifically, the decisions that have followed in the wake of the 14th Amendment’s ratification have slowly but surely made clear that if government could not support their laws discriminating against gays and lesbians with a rational justification, then the law could not withstand scrutiny. That language has been found to apply to laws that discriminate based on race, ethnicity, gender, and a number of other bases and, starting in 1996, it was extended for the first time to sexual orientation. That’s what led the Court to its decision in Roemer and its decision in Lawrence saying that people could not be treated like criminals for engaging in a consensual relationship. Although the 14th Amendment doesn’t apply to the Federal Government, identical case law under the Equal Protection Clause of the Fifth Amendment was the basis for the ruling in Windsor and the striking down of a law that never should have been passed. After Windsor, Court after Court has found that there is simply no rational basis for barring persons of the same gender from being legally married. The fact that Judges from across the legal and political spectrum, judges appointed by every President from Ronald Reagan to Barack Obama, have ruled in favor of marriage equality seems to demonstrate to me that this is not a radical holding from the Court, indeed Kennedy’s opinion is careful to limit itself to the issue at hand, but is instead the logical conclusion of a Supreme Court holdings going back as far as 1967 if not further.

There are legal, social, and political issues here that will still need to be debated and resolved in the appropriate forums. This ruling itself will no doubt be the subject of controversy going forward, but on the whole this is a very good day for individual liberty, equality under the law, and the Fourteenth Amendment. It will go down in history as a decision as significant as Loving, and I suspect that in a very short period of time the vast majority of Americans are going to wonder what the heck ever took so long to get to this day.

Graphic via Twitter

Here’s the opinion, all 103 pages of it:

Obergefell v. Hodges Opinion by Doug Mataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    So on Thursday, Scalia believes that the text matters, regardless of what the people who drafted it clearly intended it to mean, but on Friday Scalia believes that the text doesn’t matter, and that the broad expansive language of the 14th Amendment must be limited by the prejudices of the people who wrote it?

    I think the drafters meant to use broad expansive language, so they wouldn’t be adding a 34th Amendment that says “yes, even Catholics get equal protection” and a 35th that says “ok, we hate this, but Mormon Eskimo Furries? They get equal protection too.” Almost all of the constitution is written in broad language, for similar reasons. I think the text and the intent match.

    Highly-rated. Helpful or Unhelpful: Thumb up 33 Thumb down 1

  2. Argon says:

    Doug, you and James should have an online debate about the merits of applying the 14th to this case.

    I’ll lay in a supply of popcorn.

    Like or Dislike: Thumb up 5 Thumb down 0

  3. Mikey says:

    @Gustopher:

    So on Thursday, Scalia believes that the text matters, regardless of what the people who drafted it clearly intended it to mean, but on Friday Scalia believes that the text doesn’t matter, and that the broad expansive language of the 14th Amendment must be limited by the prejudices of the people who wrote it?

    Scalia’s relationship to textualism seems to derive mainly from whether he remembered to take his Metamucil.

    Like or Dislike: Thumb up 12 Thumb down 0

  4. Thomas Hilton says:

    @Gustopher:
    36: “Shit, did we forget to mention marriage? Okay, well, what are we up to now? 36? Okay, assholes: MARRIAGE.”

    Like or Dislike: Thumb up 8 Thumb down 0

  5. Tillman says:

    @Gustopher: ugh, Mormon Eskimo furries… I don’t agree with what they say, but I’ll defend to the inconvenience their right to say it.

    Like or Dislike: Thumb up 9 Thumb down 0

  6. grumpy realist says:

    Rod Dreher is having the predictable meltdown over at TAC.

    I honestly think that guy shouldn’t be allowed to comment on anything to do with law. He has no understanding of the issues, and seems to be in a constant snit because he isn’t living in the nice Crunchy Con Utopia with Dante and crawfish that he desires.

    Like or Dislike: Thumb up 9 Thumb down 0

  7. stonetools says:

    For those who think the Democrats and Republicans are the same, note President Obama’s reaction:

    SCOTUS plaintiff Obergefell takes call from Obama on speaker phone on live CNN. Obama: “I couldn’t be prouder of you”
    11:08 AM – 26 Jun 2015

    The Republican reaction?The freedom of religious people to discriminate against gays is under threat. Bobby Jindal is typical here:

    Bobby Jindal: “This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree...”

    For those who are serious about advancing gay rights, the choice is pretty clear: a 5/4 decision is one Supreme Court judge appointment away from a reversal .

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 0

  8. Lit3Bolt says:

    @grumpy realist:

    I’ve often thought there needs to be a “Dungeons & Dragons” for the Catholic conservative market. Maybe we could call it “Bishops & Bibles” or “Cathedrals & Converts” or “Altars & Apostles.” Within the Ecumenical Master’s Guide, Rod Dreher could make his Level 20 Lawful Stupid Paladin of Intolerance, call him “Dante the Homo-Hunter” and have him smite wicked Sodomites with his Rod of Lordly Might +3.

    He’s already living in a fantasy world of his own making while reality sails on by. This is a huge untapped market!

    Like or Dislike: Thumb up 7 Thumb down 0

  9. Argon says:

    @grumpy realist:

    Rod Dreher is having the predictable meltdown over at TAC.

    He didn’t write that post in advance? He’s had at least six months or more to prepare the perfect rebuttal. BTW – Which circle of Hell do pearl clutchers inhabit, according to Dante?

    Aside: A humorist in Boston called it the ‘Freedom to Nag’ decision: Now mothers can ask *all* their children, “So when are you getting married”?

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  10. grumpy realist says:

    So now one of our candidates for president is calling for the abolition of the Supreme Court.

    What is Jindal on, hashish?

    Like or Dislike: Thumb up 8 Thumb down 0

  11. Tillman says:

    @Argon: As a writer for RiffTrax put it on Twitter:

    The number of people mom can be disappointed I’m not married to yet just skyrocketed.

    Like or Dislike: Thumb up 7 Thumb down 0

  12. Dave D says:

    @grumpy realist: What is so weird about that too is that same sex marriage has been legal here in Iowa since 2011. So addressing a crowd here about the horrors of an established practice here makes little sense to me.

    Like or Dislike: Thumb up 4 Thumb down 0

  13. Joe says:

    Are Christians threatened by man/woman marriages in other religious faiths even though they are, by definition, not Christian marriages? What about same-sex marriages sanctioned by other Christian congregations? What is it about people marrying according to different religious beliefs – or without religious beliefs – that threatens them? There is a whole world of people who generally don’t operate according to the tenets of any particular religious faith. The only way to avoid that is to force everyone to follow the tenets of some particular faith by any means necessary. I think we call them ISIS.

    Like or Dislike: Thumb up 7 Thumb down 0

  14. David M says:

    @grumpy realist:

    Rod Dreher is having the predictable meltdown over at TAC.

    He’s long since stopped being rational on the issue of SSM. As best I understand him, he can’t stand the idea that society might no longer approve of efforts to discriminate against homosexuals. Not that he’ll admit he wants to discriminate, or anyone should, but he just loses it the minute anyone objects to actual discrimination.

    Like or Dislike: Thumb up 7 Thumb down 0

  15. Lit3Bolt says:
  16. Gromitt Gunn says:

    Funny how the religious freedom of UUs and the UCC and Wiccans and liberal Quakers and Jewish synagogues to marry whomever *they* choose is never taken up by these sorts of folks.

    Like or Dislike: Thumb up 7 Thumb down 0

  17. Dave D says:

    @Dave D: Sorry SSM was legal in 2009 in Iowa.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. Argon says:

    Texas AG Ken Paxton pulls a ‘Dreher’ describing how this ruling will imperil religious liberty (I wonder what he thought of Loving v Virginia…):

    “We start by recognizing the primacy and importance of our first freedom – religious liberty. The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage. In numerous incidents trumpeted and celebrated by a sympathetic media, progressives advocating the anti-traditional marriage agenda have used this issue to publicly mock, deride, and intimidate devout individuals for daring to believe differently than they do. This ruling will likely only embolden those who seek to punish people who take personal, moral stands based upon their conscience and the teachings of their religion.”

    Right. Perhaps an additional 3% of the population can now get married and this will be the downfall of Christiandom in Texas. Bristol Palin can have as second child out of wedlock and that’s no problem (probably close to the median for red states). Maybe Paxton should opt for the Benedict option.

    Like or Dislike: Thumb up 3 Thumb down 0

  19. Barry says:

    @Lit3Bolt: “…and have him smite wicked Sodomites with his Rod of Lordly Might +3.”

    Heh, heh

    Like or Dislike: Thumb up 2 Thumb down 0

  20. aFloridian says:

    I just finished reading the majority and first two dissents. Frankly I find the legal arguments of Roberts and Scalia compelling here against what is essentially the Court slapping a legal facade on their desire for a social change.

    The main point has to be distinguishing Loving from the instant case, and I think Roberts does that successfully. There’s an obvious difference between heterosexual with different pigmentation and two homosexuals who have never been conceptualized when one mentions “marriage” until recently.

    It’s also 100% true that nothing in the language of the majority suggests any reason why marriage cannot be defined as virtually anything two or more people want to call marriage. This is certainly true for consensual polygamy. Maybe that’s not a problem, but I’m curious to see what the argument would be if a group of, say, five people decided to seek “marriage.”

    There’s definitely a hint of judicial activism here, although the functional outcome is neither surprising or upsetting to me – it’s the writing on the wall and opposing same-sex marriage puts you as squarely on the wrong side of history

    Like or Dislike: Thumb up 2 Thumb down 1

  21. PJ says:

    @grumpy realist:

    So now one of our candidates for president is calling for the abolition of the Supreme Court.

    What is Jindal on, hashish?

    And this with a court where Republican Presidents have chosen five of the nine.

    So, consider what they will call for when President Clinton have replaced Scalia, Kennedy, Ginsburg, and Breyer, and there will be a liberal majority for decades…

    Like or Dislike: Thumb up 1 Thumb down 0

  22. the Q says:

    “….what the argument would be if a group of, say, five people decided to seek “marriage.”…”

    Uh, the argument would be you can only be married to one PERSON at a time. Same as the argument if they want to marry a dog or a chimp….

    So, is your next arguement going to be, “then what if a man wants to marry his sister/mom/aunt/grandmother. There, I saved you the time of rebuttal.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. grumpy realist says:

    @David M: Hell, I can’t even get Dreher to understand that the whole Brendan Eich thing was a perfectly bog-standard action under corporate law and that a Board of Directors can decide to get rid of their CEO for whatever damn reason they feel appropriate, up to and including they don’t like the color of his tie!

    Like too many idealists, Rod is constantly chastising the world for not being the world he thinks it should be, and screams Armageddon whenever he discovers that traditional Christians don’t have infinite authority over everybody else.

    Like or Dislike: Thumb up 3 Thumb down 0

  24. aFloridian says:

    “….what the argument would be if a group of, say, five people decided to seek “marriage.”…”

    Uh, the argument would be you can only be married to one PERSON at a time. Same as the argument if they want to marry a dog or a chimp….

    So, is your next arguement going to be, “then what if a man wants to marry his sister/mom/aunt/grandmother. There, I saved you the time of rebuttal.

    @the Q:

    Did you actually read the 60+ pages of opinion by Kennedy and Roberts and Scalia?

    Nothing in the majority’s logic for deciding this case demonstrates why it would not next be appropriate to extend marriage to larger groups of people who wish to define themselves in that way and thereby seek societal protection. Or, at the very least, traditional adult polygamy.

    I am not making a Parade of Horribles argument as it appears you think I am. There are well-established public policy reasons for why the government has a substantial interest in regulating incestuous relationships. Same with animals, same with minors. But groups of consenting adults? That’s different, and I think this ruling opens the door to that.

    You emphasize “one PERSON” – but why? Yes, the majority goes to pains to write “two people” when discussing marriage, but as was plain to me when reading Kennedy’s opinion and as was plain to Roberts, there’s no especial reason why it has to stop there. Marriage as a fundamental right is framed in terms of identity by the majority. Again, why can’t a man now seek to a government-endorsed relationship with two consenting women, or, shoot, three consenting men? The latter would be a new paradigm, sure, but as Kennedy points out, the justices of the future will have to decide on their own what lifestyles are worthy of 14th Amendment protection.

    Breaking marriage out of the one man one woman mold it has inhabited for time immemorial is itself a major paradigm shift, and there’s no reason now to stop at “two persons” when there’s, again Roberts makes this point nicely, if anything MORE historical support for polyamorous marriage than for same-sex marriage.

    Let me clear, I am writing here that I find myself persuaded by the dissent and its argument that there is a genuine distinction to be made between interracial marriage and same-sex marriage (i.e. Loving and this case) that, while certain legalistic, has a real impact on the outcome and suggests to me the majority is overreaching and, yes, essentially being too activist.

    That said, I think American society has moved swiftly towards an “if it doesn’t hurt me I don’t care” harm principle – heck even Kennedy noted it. Like most Americans, I find myself not caring about same-sex marriage, and, similarly, I am not particularly opposed to polyamorous marriage – I’m just making the point that I think this precedent sets the stage for its legalization.

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  25. DrDaveT says:

    @aFloridian:

    You emphasize “one PERSON” – but why?

    We’ve been over this before.

    Because contracts between two mortal people are fundamentally different from contracts among an indeterminate number of people of various ages, entering or leaving the contract over time, possibly in perpetuity.

    For Pete’s sake, go read The Moon is a Harsh Mistress and then come back and try to argue that group marriage contracts are not fundamentally different from pairwise marriage contracts.

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  26. Grewgills says:

    @aFloridian:

    Breaking marriage out of the one man one woman mold it has inhabited for time immemorial is itself a major paradigm shift

    By time immemorial I guess you you mean since ~700AD for christians and ~1100AD for jews and not yet for some other religions.

    Like or Dislike: Thumb up 2 Thumb down 0

  27. James Joyner says:

    @Gustopher: @Thomas Hilton: The 14th Amendment solves that problem with “Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” That is, the people’s representatives are specifically given the power to keep the Amendment current through simple legislation.

    Like or Dislike: Thumb up 1 Thumb down 0

  28. grumpy realist says:

    @aFloridian: We don’t have three party contracts. End of story.
    This is why I keep telling people over and over again that even if the concept of marriage is merged into the concept of contracts, this doesn’t make polygamous marriages more likely.

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  29. aFloridian says:

    @grumpy realist:

    That is an artificial barrier. There’s no reason we cannot introduce new structures for marriage outside of the traditional two-person marriage contract (subject to contractual formalities, Statute of Frauds, etc.) to encompass more people. And if you support same-sex marriage, why wouldn’t you support consensual polygamy? Kennedy’s language of framing identity suggests it’s no different.

    A number of suggestions exist, for example, treating it as an incorporated entity.

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  30. DrDaveT says:

    @aFloridian:

    And if you support same-sex marriage, why wouldn’t you support consensual polygamy?

    I don’t support same-sex marriage, as a separate thing. I support marriage, and I support equal treatment under the law.

    You might as well ask “If you support desegregating education for blacks, why wouldn’t you support unisex public bathrooms? After all, you just said that separate can’t be equal”. It’s a false analogy.

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