Same-sex marriage ruling creates new constitutional liberty

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.

Though the court’s 5-4 opinion is tightly focused on the question of same-sex unions, its broad wording and soaring rhetoric will reverberate beyond the two-decade-long battle for marriage equality and almost surely lead to the striking down of any remaining laws that directly discriminate against people based on sexual orientation.

The 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.

The impact was immediately felt by gay and lesbian couples in the 13 mostly Southern and Midwestern states that still banned same-sex marriage. Such unions were already legal in 37 states, including California.

“No longer may this liberty be denied to them,” Justice Anthony M. Kennedy wrote in the court’s opinion, 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.”

Read the full Supreme Court decision on gay marriage

Kennedy put the struggle for equal rights in a historic context, building on the 1967 Loving vs. Virginia decision that struck down interracial-marriage bans and the gender-discrimination rulings of the 1970s, which eliminated laws that gave wives lesser rights than husbands.

The court’s decision — which comes almost exactly 46 years to the day after the Stonewall Inn riots by gay protesters in New York’s Greenwich Village launched the modern-day gay-rights movement — will likely accelerate the wave of acceptance of same-sex marriage. A majority of Americans now support same-sex marriage, a reversal from just a few years ago.

Because of the shift in public opinion, it is unclear whether the decision will engender the lasting controversy of cases such as Roe vs. Wade, which established a constitutional right to abortion, or become all but universally accepted, as the Loving ruling on interracial marriage.

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 described 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.”

Amid rainbow flags and joyous celebrations on the Supreme Court steps, James Obergefell, the lead plaintiff in the case, took a congratulatory phone from President Obama. Obergefell had sued the state of Ohio for refusing to recognize his marriage after his husband, John Arthur, died of amyotrophic lateral sclerosis.

Obama lauded the ruling during remarks in the White House Rose Garden, calling it a “victory for America.” He praised the persistence of same-sex marriage backers who took their fight to statehouses, courthouses and all the way to the Supreme Court. “Sometimes,” he said, “there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.”

Allowing gay couples to marry would strengthen communities by extending “the full promise of America to every American.… This decision affirms what millions of Americans already believe in their hearts: that when all Americans are treated as equal, all are free,” the president said.

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined with Kennedy to form the 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.

That surge of support for gay marriage was set off two years ago when the high court struck down part of the federal Defense of Marriage Act and said the marriages of same-sex couples deserved equal dignity and respect under the law.

That decision resolved only a question of federal benefits for these couples, but its reasoning spurred judges to void a series of state laws that had limited marriage to a man and a woman.

When pressed to defend their laws, state attorneys were unable to offer a convincing reason why committed couples, some of them raising children, should be denied a marriage license.

Though Friday’s decision addressed only the question of same-sex marriage, the ruling may very well send a legal message throughout the country that discrimination based on sexual orientation is on shaky legal ground.

Often the court’s landmark opinions extend far beyond the issue decided. In the famous 1954 Brown vs. Board of Education case, the justices outlawed racial segregation in public education, but that opinion was later read by judges to strike down racial segregation broadly in city parks, swimming pools, bus stations and elsewhere.

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.”

She said the ruling would help gay-rights advocates combat more than 115 pieces of legislation that were introduced in state legislatures this year targeting gay people.

Theodore J. Boutrous, a prominent Los Angles lawyer who was part of the legal team that first took the gay marriage issue to the Supreme Court, said the opinion “rejects the notion of second-class citizenship for gay people. Any law that discriminates against gay people is going to fall in the face of this ruling.”

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 UCLA.

“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.

Warbelow and some other legal advocates, however, indicated they would have liked Kennedy to go even further in his majority opinion and put discrimination based on sexual orientation on a par with discrimination against racial minorities or women.

“We certainly would have liked a clearer guidance,” Warbelow said. “That would have made it crystal clear that there are virtually no circumstances under which the government can discriminate against gays. With the ruling we got today, we may have to continue to fight some of those battles in court.”

Twitter: @DavidGSavage

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