WASHINGTON, D.C.: The Supreme Court’s historic ruling Friday granting gays and lesbians an equal right to marry nationwide puts an exclamation point on a profound shift in law and public attitudes, and creates the most significant and controversial new constitutional liberty in more than a generation.
The landmark civil rights decision was cheered by some as a long overdue validation of a basic human right and condemned by others as an effort by liberal justices to usurp states’ rights in order to resolve a social, not legal, issue.
While same-sex marriage was already legal in more than three dozen states, the impact of the decision was immediately felt by gay and lesbian couples in the 13 mostly Southern and Midwestern states that still banned such unions.
“No longer may this liberty be denied to them,” Justice Anthony M. Kennedy wrote, declaring that gays and lesbians deserve equal respect and dignity under the due process and equal protection clauses of the 14th Amendment. “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.”
Same-sex couples, he wrote, “ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Kennedy, whose four major opinions on gay-rights have cemented his legacy as the court’s strongest voice against discrimination based on sexual orientation, acknowledged that some parts of the country may not be ready to accept equality for gays and lesbians. “The nature of injustice is that we may not always see it in our own times,” he wrote.
But he argued the harm of denying gays and lesbians the equal right to marry outweighed admonitions that the court move more slowly in order to give state legislatures more time to adjust their laws. “Dignitary wounds cannot always be healed with the stroke of a pen,” he said.
In four separate and blistering dissents, conservative justices heaped scorn on the majority opinion. “This court is not a legislature (and) our Constitution does not enact any theory of marriage,” said Chief Justice John G. Roberts Jr., who took the rare step of reading his dissent in court.
Some had thought Roberts might join the majority, but he wrote a 29-page dissent to say why he thought the matter should be decided in the political arena.
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” he said. But he referred to it as an “act of will, not legal judgment.”
Justice Antonin Scalia, well known for his vitriolic dissents, called the opinion “a judicial Putsch,” “pretentious,” “egotistic,” “silly,” and filled with “straining-to-be-memorable passages.”
In unusually personal terms even for Scalia, he mocked Kennedy’s opening sentence, saying he would sooner “hide my head in a bag” than join it.
“Today’s decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the court’s claimed power to create ‘liberties’ that the Constitution and its amendments neglect to mention.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined with Kennedy to make a majority in Obergefell vs. Hodges. Justices Clarence Thomas and Samuel A. Alito Jr. also dissented.
The ruling was no surprise since the justices had stood back in recent months and watched as federal judges, state courts, lawmakers and voters knocked down the legal barriers to gay marriages in 37 states.
In addition to clearing the way for same-sex marriage nationwide, Friday’s decision may help end discrimination against gays and lesbians in other matters, such as adoption and custody rights, legal experts say.
“This will have tremendous impact on family law in particular,” said Sarah Warbelow, the top lawyer for the Human Rights Campaign in Washington. “This will be a tool to help us begin to eradicate those instances of discrimination.”
Gays and lesbians are particularly concerned with family law issues because they are three times more likely to be raising an adopted or foster child, according to a legal brief filed in the case by demographer Gary Gates of the Williams Institute at the University of California, Los Angeles.
“To the degree that gays are stigmatized in custody battles, it feels like that will be harder for it to be a relevant point,” Gates said in an interview.