With the announcement of last week’s Supreme Court decision, proponents of same sex marriage rejoiced and Facebook became much more colorful. After a weekend of celebrating the new-found rights of my gay and lesbian friends, neighbors and colleagues, I sat down today to read all 103 pages of the majority decision and dissenting opinions, including a particularly “colorful” dissent from Justice Scalia.
How did this issue get to the Supreme Court?
The state constitutions of Michigan, Kentucky and Tennessee provided that the institution of marriage, together with its rights and privileges, could apply only to the union of one man and one woman. Ohio provided a similar definition of marriage by statute. Same-sex couples in each of these four states filed lawsuits asserting that the state-law definitions of marriage violated the rights guaranteed to each of them under the federal Constitution. Federal courts in each of those four states agreed with the plaintiffs at the trial level, but the Sixth Circuit Court of Appeals reversed, upholding each state’s restrictions on the definition of marriage. To resolve a highly-publicized and emotional conflict among the 50 states that has existed since Massachusetts became the first to recognize same-sex marriage in 2003, the U.S. Supreme Court agreed to hear the issue.
The Majority Ruling
Justice Kennedy, who has authored prior opinions advancing gay rights, wrote an impassioned majority decision. Ultimately, it held that both the Due Process Clause and the Equal Protection Clause of the 14th Amendment require all states to recognize marriage as a fundamental right afforded to all citizens, including those in same-sex relationships.
Before penning the flowery conclusion that set the internet abuzz, Justice Kennedy carefully examined the history of marriage, noting its evolution over time with changes that have strengthened, not weakened, the institution. He similarly reviewed the history of homosexuality in the United States, as we gradually have moved past perceptions of the lifestyle as immoral and in some respects illegal. From 1952 – 1973 it was defined in psychological treatises as a mental illness. Our current society has increased awareness, tolerance and acceptance of the LGBT community in general.
Justice Kennedy then described the legal foundation of the majority opinion, rooted primarily in the Due Process Clause of the 14th Amendment, which mandates that:
“No State shall deprive any person of life, liberty, or property, without due process of law.”
According to Justice Kennedy, the right to liberty includes not only those liberties specifically listed in the Bill of Rights, but also the right to make “personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs” – specifically including the right to marry. Justice Kennedy cited to the Supreme Court’s 1967 decision invalidating state restrictions on interracial marriage, and noted that the reasoning in that decision applies equally to the issue of same-sex marriage:
- An individual’s personal choice regarding marriage – including the right to marry someone of another race, or someone of the same sex – is inherent to the concept of individual autonomy.
- Marriage is a two-person union unlike any other; an intimate associate wherein individuals define themselves through their commitment to one another.
- Marriage brings with it special protections for children and families, and should include protections for the children and families of interracial couples as well as same-sex couples.
- Marriage is a building block of our national society; a keystone of our national social order.
As a result, marriage is a fundamental liberty interest in our society, and the states cannot take it away from any individual without “due process.” The denial of marriage licenses to same-sex couples does not comply with due process, and so Justice Kennedy and four of his colleagues declared that no state can deny a marriage license on that ground, nor may a state refuse to recognize a same-sex marriage properly granted in another state.
This is a controversial decision with far-reaching implications, many of which go beyond the scope of this blog. Does the majority opinion constitute judicial policy-making that improperly infringes on an area more appropriately left to the democratic process? We’ll leave that issue to the constitutional law experts. For our readers, what’s important to take away from the Obergefell decision is that same-sex marriage, the law of Massachusetts for more than a decade, is now the law of the land. Stay tuned for a further post later this week, discussing the impact that Obergefell will have on the individuals who fought the issue all the way to the Supreme Court, as well as on the millions of gay and lesbian Americans whose committed relationships will now enjoy the same privileges and protections as the relationships of their heterosexual counterparts.
Hope this helps!