APPLYING TO MARRY: Less than two hours after the Supreme Court's marriage equality ruling, a couple — Earnie Matheson (left) and Tony Chiaro — arrived at the Pulaski County Courthouse to take advantage of the end of Arkansas's same-sex marriage ban. Judge Chris Piazza, author of the historic equality ruling last May, married them.
The United States Supreme Court
this morning ruled that the 14th Amendment requires a state to license a marriage between two people of the same sex. Justice Anthony Kennedy announced the 5-4 decision, which will have four written dissents.
The opinion makes clear that states that have prohibited same-sex marriage must recognize marital status of people married in other states. The majority opinion relies on both fundamental rights and equal protection, both arguments raised in the state and federal challenges of the Arkansas ban on same-sex marriage.
The opinion seems to go out of its way not to state a standard of scrutiny. Instead, it says, "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."
Here's the full decision.
The split court will give opponents plenty of quote material. Chief Justice Roberts for example solemnly intoned that the court should rule on what they want the law to be, only on what it is. This has already prompted sneering jibes from those unhappy about his ruling on Obamacare yesterday.
More analysis from scotusblog:
The Chief Justice is reading his dissent from the bench still. I have a brief summary of it below, but the basic gist is that he thinks that the democratic process should have worked this out on its own. The tone of the Chief's dissent is very measured, and repeatedly urges the victors to celebrate, despite his disagreement with the Court being the one to make the decision.
... The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order.
Roberts favored the slow process of continued democratic action. We know how well that worked on racial discrimination in marriage, ultimately undone by a unanimous Supreme Court in the Loving case. Kennedy addressed that:
There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy
is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment.
The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents’ argument that allowing samesex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.
As yet, still nothing from the Arkansas Supreme Court.
But a reasonable prediction is that the Supreme Court ruling this morning will prompt release of the Arkansas court decision. Will local officials resist? We will see.
Pulaski County Clerk Larry Crane
has promptly said his office would begin issuing licenses today. He said he was overjoyed and happy to be a part of the historic development. He said he expected a large crowd based on previous inquiries. It's uncertain if other clerks will follow his lead. But they'd be well advised to read Justice Kennedy's closing that says "same-sex couples may now exercise the fundamental right to marry in all states."
UPDATE: Scott Perkins, communications director for the Association of Arkansas Counties,
said that organization was advising counties to begin issuing marriage licenses to same-sex couples forthwith. He said some counties hadn't solved software issues on licenses. Some have already prepared gender-neutral license forms. But those issues shouldn't be a bar to issuance of licenses. Our spot checks turned up no clerks not planning to begin issuing licenses as requested. One has already been issued in Faulkner County.
I got this e-mail from Jack Wagoner
from an airplane. He joined Cheryl Maples as an attorney
in the state lawsuit and was the lead lawyer in the successful federal lawsuit.
It’s what we’ve been waiting for. It brings a tear to my eye. One of those great moments in history. I can’t imagine to have to grow up and live with the prejudice and humiliation that so many homosexual people have suffered. This is the RIGHT thing. And I am so happy for all the people affected by it.
AND I am going to LOVE to watch all the right-wing religious types squirm about all this. It will be interesting to see next whether officials, or even courts, of our state will try to defy the federal law now.
Justice Kennedy wrote eloquently on the issue of discrimination and full participation by gay people in marriage, concluding:
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.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
From Tippi McCullough
, president of the Arkansas Stonewall Democratic Caucus:
The Supreme Court of the United States historic decision today regarding same-sex marriage affirmed what the Stonewall Democratic Caucus of Arkansas has fought for and believed in by righting a wrong that only the struggle of brave men and women, time, progress, and the wisdom of our Constitution could make a reality.
We thank and commend the Supreme Court for their decision. Many Americans have lived in fear of living an authentic life and of simply being who they were born to be.
They feared losing their job, or not being hired at all, being denied housing, or of being shunned by those closest to them. Full marriage equality is a step toward achieving full civil rights recognition.
Every civil rights fight involves people standing up to say that I am here, and I am a citizen of this great country, and I deserve all that our Constitution allows in benefits and in standing. On a day like today we must reflect on many of the people who stood up and fought for our rights and even some who sacrificed their lives.
From the Stonewall riots to fighting on the floor of the Arkansas state legislature, equality was not easily won. But today as celebration is expected and deserved it is also a time to reflect.
Recognition of a fundamental right does not mean that anyone else loses anything. Our country only becomes freer, stronger, and more united when we stand together. Today we proudly stand with all Americans and rejoice in this historic decision.
As valuable as marriage recognition is in elements of the law from taxation to inheritance and family relations, the decision isn't a direct path to equality in other areas, such as employment. Nor does this ruling disturb those who cite a religious pretext for discrimination against gay people. But the ruling does introduce a pathway to those and other issues.
Responses are expected before long from Attorney General Leslie Rutledge and Gov. Asa Hutchinson. Will Rutledge fight Judge Wendell Griffen's ruling that validated the marriages of those 500 couples wed in the week following Judge Chris Piazza's ruling last May? Will she continue to pursue a fruitless appeal of federal Judge Kristine Baker's ruling to the 8th Circuit U.S. Court of Appeals? Will Hutchinson's state finance agency begin treating married couples as married under tax laws? The answer should be yes.
A lawyer's aside to Jason Rapert and other marriage foes soon to unwind on social media with denunciations: Kennedy was a Reagan appointee.