Gay Marriage, SCOTUS, Supreme Court

The Supreme Court Rules In Favor Of Marriage Equality Nationwide

Congratulations to Jim Obergefell and all the parties and their lawyers on this historic win.

By  
on

This morning the U.S. Supreme Court ruled, in Obergefell v. Hodges, that the Fourteenth Amendment requires states to license marriages between two people of the same sex. By a vote of 5-4, the Court vindicated marriage equality across the United States.

The result does not come as a huge shock. By declining to stay lower-court rulings allowing same-sex marriages to go forward, SCOTUS tipped its hand months ago as to outcome. The authors of the opinion of the Court and (some of) the dissents also come as no surprise: Justice Anthony M. Kennedy has been the leading voice of SCOTUS on vindicating gay rights, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito haven’t been noted supporters of gay rights in the past. (Chief Justice Roberts might have surprised some optimistic supporters of marriage equality with his vigorous dissent.)

Even the timing was somewhat expected. I predicted yesterday that Obergefell would come down today, June 26 — the same day as two of Justice Kennedy’s three other major gay-rights precedents, Lawrence v. Texas and United States v. Windsor — and I am very relieved not to have a carton of eggs on my face.

As to how I feel about the outcome, I have a somewhat more moderate take than most people who fit into my demographic (i.e., gay men engaged to be married). I am elated over gay marriage becoming a constitutional right nationwide — but I do have some concerns, and I think this issue is more complicated than some people believe.

Gay marriage is neither close nor complicated as a policy question. If you are asked to vote on a referendum teeing up the question of whether same-sex marriage should be legal, the pros vastly outweigh the cons.

Gay marriage is more complicated, but not extremely complicated, if you are a lower-court judge deciding the constitutional issue in the wake of United States v. Windsor, in which SCOTUS struck down key portions of the Defense of Marriage Act (DOMA). One can disagree over the main rationale of Windsor, which was far from a pellucid opinion — Chief Justice Roberts and Justice Scalia did, arguing over whether it was driven more by federalism or equal-protection concerns — but at the end of the day, there is more than enough in Windsor to serve as a basis for holding that the Fourteenth Amendment requires allowing same-sex marriage. This explains why the vast majority of lower-court judges, appointed by presidents of both parties, voted in favor of marriage equality in post-Windsor challenges to state same-sex-marriage bans. (I respect Judge Jeffrey Sutton and his opinion for the Sixth Circuit going against same-sex marriage, but I believe the judges on the other side have the better of the argument — as reflected in the tally of how lower-court judges broke, as well as today’s reversal of the Sixth Circuit.)

Gay marriage is a much tougher question if you are a Supreme Court justice deciding the constitutional question either without Windsor or with the power to overrule or limit Windsor. I am sympathetic to the argument that in an ideal world, this issue should be decided by the people themselves, through their legislatures or through referenda, as opposed to unelected judges. I am also sympathetic to the argument that in an ideal world, this issue should have been decided a little bit later, to let public opinion shift (even more) and to allow (even more of) a societal consensus in favor of marriage equality to build.

Sponsored

But I have the luxury of being an armchair analyst without having to worry about whether the Supreme Court’s ruling would affect my inability to marry the man I love. I live with my fiancé in the great state of New York, where marriage equality was passed by the legislature and signed into law by the governor. In a few weeks we’ll be getting married in Massachusetts, where marriage equality came about through interpretation of the Massachusetts state constitution — something that federalism-focused conservatives should be able to respect.

So I will simply conclude with congratulations. Congratulations to Jim Obergefell, who has been fighting this battle even after his husband’s passing, and congratulations to all the other parties before the Court. Congratulations to their counsel, who took their cases all the way to One First Street. And congratulations to all the lawyers — and organizations, legal scholars, activists, supporters — who have worked so hard on marriage equality over the years.

Today is a great day. And even if reasonable people can disagree on whether it should have come earlier or later, we should all be glad that it finally arrived.

(I will be UPDATING this post with additional observations as more news about the opinions emerges; refresh for the latest.)

UPDATE (10:35 a.m.): You can read the 103 pages of opinions here. I’ll share some tidbits gleaned from my skimming and from the great liveblog of SCOTUSblog:

Sponsored

  • Question: Was the opinion based on due process or on equal protection? Answer: Both. Like AMK’s opinion in Windsor, it’s not super-clean doctrinally (but presumably intentionally so).
  • Page 22: “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.”
  • From the kicker of AMK’s opinion: “”No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
  • Chief Justice Roberts read his dissent, the principal dissent, from the bench — the first time he has ever done so, according to Lyle Denniston of SCOTUSblog.
  • From JGR’s dissent: “If you are among the many Americans–of whatever sexual orientation–who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not Celebrate the Constitution. It had nothing to do with it.” (That was way harsh, Tai.)

UPDATE (10:41 a.m.): From Tejinder Singh of SCOTUSblog:

Scalia’s dissent has an awesome footnote on page 7 (note 22): he says, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He is not happy with Justice Kennedy.

Justice Scalia is not known for pulling his punches.

UPDATE (10:45 a.m.): A bit of chaos in the Court? Some reports on Twitter of an evacuation, plus this from SCOTUSblog: “FYI, something is going on in the main hall of the Supreme Court. The police are evacuating the room and forcing everybody outside. We at blog HQ are undisturbed.”

UPDATE (10:49 a.m.): We’ll have more about Obergefell later today, on the site and on our Twitter feed (@ATLblog). And as I mentioned last night, if you will be in New York tonight and would like to raise a celebratory glass with me (and my fiancé), drop by the back room of The Black Door (127 West 26th Street) between 9 p.m. and midnight. You know you’ll be in Chelsea anyway, so we hope to see you there!

(Thanks again to Tim Ryan Smith for the photograph.)

Obergefell v. Hodges [U.S. Supreme Court]
Justice Anthony Kennedy’s Tolerance Is Seen in His Sacramento Roots [New York Times]
How the Supreme Court Could Make Everyone Happy With Its Same-Sex Marriage Decision [Slate]
June 26, judicial impartiality, and Justice Kennedy — cause for concern? [Mirror of Justice]

Earlier: Why The Same-Sex Marriage Decision Will Likely Come Out Tomorrow

Topics

, , , , , , , , , , , , ,