The US Supreme Court has ruled 5-4 that the U.S. Constitution contains a right to same-sex marriage.
Yahoo Politics (“Supreme Court affirms right to gay marriage“):
The Supreme Court has found a constitutional right to same-sex marriage, striking down bans in 14 states and handing a historic victory to the gay rights movement that would have been unthinkable just 10 years ago.
Anthony Kennedy, a conservative justice who has broken with his ideological colleagues to author several decisions expanding rights for LGBT people, again sided with the court’s four liberals to strike down the state bans. The 5-4 majority ruled that preventing same-sex people from marrying violated their constitutional right to equal protection under the law and that the states were unable to put forth a compelling reason to withhold that right from people.
The United States is now just the 21st country in the world to allow same-sex marriage in every jurisdiction.
In oral arguments last April, Kennedy expressed reservations about changing the traditional definition of marriage to include LGBT people and seemed to suggest that the court should allow the American public to continue debating the relatively new concept.
“The word that keeps coming back to me in this case is millennia,” he said then, referencing the amount of time societies had considered marriage to be only between a man and a woman.
But Kennedy was swayed by the fact that hundreds of thousands of married same-sex couples already exist and that they — and their children — are being treated differently by the law when they move to a state that doesn’t recognize their union. The states in the case also had trouble articulating why they had a compelling reason to deny that recognition, saying only that it was in the interest of children to only allow couples of the opposite sex to marry.
The decision came just two years after the Supreme Court ruled that the federal government could no longer refuse to recognize married same-sex couples who lived in the handful of states that had legalized their unions. That decision, also written by Kennedy, caused a cascade of lower court decisions striking down state same-sex marriage bans, and now 36 states allow same-sex marriage. Public opinion on gay marriage has changed at lightning speed as well: 60 percent of Americans support it, compared with just 37 percent 10 years ago.
CNN (“Supreme Court rules states must allow same-sex marriage“):
In a landmark opinion, the Supreme Court ruled Friday that states cannot ban same-sex marriage, handing gay rights advocates their biggest victory yet.
The 5-4 ruling had Justice Anthony Kennedy writing for the majority with the four liberal justices. Each of the four conservative justices wrote their own dissent.
The far-reaching decision settles one of the major civil rights fights of this era — one that has rapidly evolved in the minds of the American pubic and its leaders, including President Barack Obama. He struggled publicly with the issue and ultimately embraced same-sex marriage in the months before his 2012 re-election.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” Kennedy wrote. “In forming a marital union, two people become something greater than they once were.”
In a dissent, Justice Antonin Scalia blasted the Court’s “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.”
The relevant cases were argued earlier this year. Attorney John Bursch, serving as Michigan’s Special Assistant Attorney General, defended four states’ bans on gay marriage before the Court, arguing that the case was not about how to define marriage, but rather about who gets to decide the question.
The case came before the Supreme Court after several lower courts overturned state bans on gay marriage. A federal appeals court had previously ruled in favor of the state bans, with Judge Jeffrey Sutton of the Sixth Circuit U.S. Court of Appeals writing a majority opinion in line with the rationale that the issue should be decided through the political process, not the courts.
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“Gay and lesbian people are equal,” Solicitor General Donald B. Verrilli Jr. told the justices at the oral arguments earlier this year. “It is simply untenable — untenable — to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals.
NYT (“Same-Sex Marriage Is a Right, Supreme Court Rules, 5-4“):
In a long-sought victory for the gay rights movement, the Supreme Court ruled on Friday that the Constitution guarantees a nationwide 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.
As in earlier civil rights cases, the Supreme Court had moved cautiously and methodically, laying careful judicial groundwork for a transformative decision.
As late as October, the justices ducked the issue, refusing to hear appealsfrom rulings allowing same-sex marriage in five states. That decision delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24, along with the District of Columbia, up from 19.
Largely as a consequence of the Supreme Court’s decision not to act, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.
The court did not agree to resolve the issue for the rest of the nation until January, in cases filed by gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee. The court heard extended arguments in April, and the justices seemed sharply divided over what the Constitution has to say about same-sex marriage.
Lawyers for the plaintiffs said their clients had a fundamental right to marry and to equal protection, adding that the bans they challenged demeaned their dignity, imposed countless practical difficulties and inflicted particular harm on their children.
The Obama administration, which had gradually come to embrace the cause of same-sex marriage, was unequivocal in urging the justices to rule for the plaintiffs.
“Gay and lesbian people are equal,” Solicitor General Donald B. Verrilli Jr. said. “They deserve equal protection of the laws, and they deserve it now.”
WaPo (“Supreme Court rules gay couples nationwide have a right to marry“):
The Supreme Court on Friday delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples.
The court’s action marks the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence. Advocates called it the most pressing civil rights issue of modern times, while critics said the courts had sent the country into uncharted territory by changing the traditional definition of marriage.
“The court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them,” Justice Anthony Kennedy wrote in the majority opinion. He was joined in the opinion by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
All four of the court’s most conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented and each wrote separate opinions.
Reading a dissent from the bench for the first time in his tenure, Roberts said, “This is a court, not a legislature.”
The country’s first legally recognized same-sex marriages took place just 11 years ago, the result of a Massachusetts state supreme court decision. Now, more than 70 percent of Americans live in states where same-sex couples are allowed to marry, according to estimates.
The ruling is simultaneously expected, sound public policy, and a bit baffling.
As noted in the quoted text, it follows the logic of several recent SCOTUS rulings and therefore struck me as inevitable. Moreover, whatever one’s views of whether homosexuals ought to have the right to enter into an institution that was until quite recently reserved for “one man and one woman” (for the record: I’m in favor), Kennedy is right: it’s simply unconscionable to treat married gays differently than other married couples under the law. Once some American states allowed people of the same sex to marry, much less once states with a majority of the population did so, it was cruel and in violation of our Constitutional principles to deny them the protections that came with marriage if they happened to be passing through another state in our Republic.
Still, while I applaud the public policy outcome here, I’m somewhat dismayed intellectually by the ruling. The notion that the Equal Protection Clause, adopted in 1868, was intended to convey a right to same-sex union is just absurd. Yes, times and circumstances change and the Constitution in some ways accommodates that. It’s patently obvious that the 1st Amendment protections of speech, press, and religion extends to the Internet, even though that particular technology was unfathomable in 1789. Similarly, Congress was certainly permitted to create and fund an Air Force, despite the Constitution only mentioning an Army and a Navy and the airplane not having been invented in 1787. Homosexuality was a known commodity in 1868; had those framing and ratifying the 14th Amendment been told that, in adding it to the Constitution, they would be enshrining same-sex marriage into our foundational document, they would have specifically declined to do so.
This is, in short, a classic case of judicial activism. And one that does not fit the wag’s definition of “a judicial ruling you don’t like.” I very much like the outcome here. It’s the reasoning that I dislike.
Update (Doug Mataconis) Further thoughts on today’s opinion can be found in here.
