We’ve traveled a long way legally in the last 12 years when it comes to the question of gay marriage. It was just a dozen years ago that the Supreme Judicial Court decided the case of Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), the first case in the nation that found a constitutional right to marry for same sex partners. That right was found in the Constitution of the Commonwealth of Massachusetts and not the Constitution of the United States of America. Today the Supreme Court of the United States (sometimes abbreviated as SCOTUS) found the same right in the federal Constitution.
This case, Obergefell v. Hodges, challenged the prohibition on the rights of gays to marry in four states: Michigan, Kentucky, Ohio, and Tennessee, all of which defined marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit Court of Appeals consolidated the fours cases and reversed. The Supreme Court, in a case authored by Justice Anthony Kennedy reversed the reversal, and held that the 14th amendment of the Constitution requires states to allow people of the same sex to marry, and requires states to recognize the marriages of same sex couples performed in other states.
The Fourteenth Amendment, for those of you who neither attended law school nor were paying attention in your high school civics class, is essentially the amendment that applies certain provisions of the Bill of Rights to the states. The Bill of Rights, for those of you who weren’t paying attention then either, is the first 10 amendment of the U.S. Constitution. By its own terms, the Bill of Rights applies only to the federal government, not the governments of the states.
The core provision of the 14th Amendment, provides as follows:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is the amendment that has been used as the justification for decisions on abortion, civil rights, and now same sex marriage.
In its decision today, the court grounds its opinion in two ideas: first, simply the notion that the 14th Amendment guarantees “equal protection” to all citizens, and second, it’s conclusion that marriage is a “keystone” of the nation’s “social order” (and that this central position is reflected in the laws of many states). Just as a couple “vows to support each other,” so does society “pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.” In what is likely to become an oft-quoted paragraph, Justice Kennedy concludes his opinion with the following observation:
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.
Chief Justice Roberts, Justice Scalia and JusticeThomas all dissented in separate opinions. The principle dissent, authored authored by Chief Justice Roberts, makes the state’s rights argument, and emphasizes that the opinion is not founded in Roberts’ personal view of gay marriage — his opinion suggests that he may be for it — but in the question of whether it’s the court or the people’s job to redefine marriage. He writes:
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
If Roberts’ opinion is reasoned and arguably reasonable, Scalia’s and Thomas’ are not. No surprise there. Scalia writes:
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. … It is of overwhelming importance, however, who it is that rules me. 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.
Of course, one could have said the same thing back to Scalia when he was in the majority opinion on a case like Bush v. Gore, where the Supreme Court simply chose to take the decision about who would become President of the United States away from the people and decide it on their own.
Scalia writes further:
[This court] consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South- westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
No doubt the court is unrepresentative of society as a whole. But that is true in every case they decide, many of which have far-reaching social implications.
Of course, Scalia is just warming up. He continues by calling the opinion a “judicial Putsch.”
The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds — minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly — could not.
Scalia concludes that the majority opinion “is couched in a style that is as pretentious as its content is egotistic.”
Which begs the question of whether Justice Scalia has a passing familiarity with the notion of “judicial temperament.”
And that brings us to Silent Thomas, the Justice who never speaks out loud, but has plenty to say in his written opinions. What is most interesting about Justice Thomas’ opinion, and is likely to produce the most commentary, is how Thomas tries to distinguish antimiscegenation laws from the prohibition on gays to marry.
Antimiscegenation statutes are the laws that used to forbid interracial marriage. The Supreme Court struck these laws down in a famous 1967 case known as Loving v. Virginia. That case was brought by a married couple, a white man and black woman, who had both been sentenced to a year in prison in Virginia for marrying each other and thereby violating the Racial Integrity Act of 1924.
The Loving case would seem to be an incredibly apt precedent to the court’s decision here in Obergefell: a cultural norm around marriage which became antiquated and outdated and was changed because it was antiquated and outdated. And discriminatory. Thomas tries to avoid this conclusion by making the argument that antimiscegenation statues arose “out of a desire to shore up an invidious institution like slavery,” as if that made a difference. Yes, they began to be enacted when the slaves were freed, but so what? They were wrong not because of when they were enacted but because of the content of what was enacted.
Some of you may remember how controversial the Goodrich decision was at the time it was enacted. It was hung around the neck of then-Presidential candidate John Kerry — who, to be fair, did a lot on his own to assure that he would not be elected President — and prompted a number of state legislature’s to enact their own “Defense of Marriage” acts, modeled on the Federal Act.
But now all of that is over. Gay marriage will become just like interracial marriage: not necessarily the norm, but not necessarily unusual either. Not different from other kinds of marriage in any significant way. And that is the way it should be.