by Max Brantley
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."
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.
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.
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.Justice Kennedy wrote eloquently on the issue of discrimination and full participation by gay people in marriage, concluding:
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.
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.
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.