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SCOTUS Mandates Same Sex Marriage Nationally (UPDATED)
From the the syllabus in Obergefell v. Hodges:
The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
More:
Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.
Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.
From Kennedy’s decision (joined by Ginsburg, Breyer, Sotomayor, and Kagan; starts on p. 6):
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. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex…
From their beginning to their most recent page, the annals of human history reveal the transcendent im- portance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secu- lar realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
From Chief Justice Roberts’ dissent (joined by Scalia and Thomas; starts on p. 40):
Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
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.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
From Justice Scalia’s separate dissent (joined by Thomas; starts on p. 69):
I join THE CHIEF JUSTICE’s opinion in full. I write sepa- rately to call attention to this Court’s threat to American democracy.
The substance of today’s decree is not of immense per- sonal importance to me. The law can recognize as mar- riage whatever sexual attachments and living arrange- ments it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.
Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. 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. 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. This practice of constitutional revision by an unelected commit- tee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
From Justice Thomas’s dissent (joined by Scalia; starts on p. 78):
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not enti- tlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
From Justice Alito’s dissent (joined by Scalia and Thomas; starts on p. 96):
Published in LawUntil the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.1 The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State…
To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradi- tion.’ ” Washington v. Glucksberg, 521 U. S. 701, 720–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights.
Hey, now…
Some publisher should take these nine supreme court decisions and bundle them up in a book. The four dissenting opinions would go first under the part title “The Old United States,” and the five affirming decisions would go second under the part title “The New United States.”
Just the opinions by themselves. An intellectual snapshot of who we were and who we are now.
Ask the principals that refused to accept the Supreme Court order to integrate the schools. They were soon looking down the barrel of a rifle/tank. This hill isn’t worth dying on.
Dear Gays,
Now that marriage is legal, can I have my rainbow back? For 4,000 years it was a symbol of God’s promise not to drown us again. Let’s not get Him angry. Give it back.
Yes, a 9-0 decision would have created the unified acceptance necessary to help people get past deeply held beliefs that only stretch back to the 2004 election. And “conservative jurisprudence,” as amply demonstrated by Scalia, is but mere entertainment, a mere playing to the crowd.
I literally spit up my coffee.
Merina, step back from the ledge, neither the country nor the world will end over this.
This is certainly interesting in light of Roberts’s decision in Burwell, but I think there’s a substantial difference between stretching a law to make it work (which I dislike) and making one up out of whole cloth as done here (which is indefensible, or should be).
Buh-bye.
Completely agreed. Bush’s faith initiatives always made me very uncomfortable because the strings that come with government funds. Religious groups take these funds at their own peril. The history of religious freedom in this country includes rejection of the practice of townships to tax citizen to pay certain denominational churches. It’s bad for the church and the state to co-mingle funds.
However, that should not include using non-profit status as a cudgel. While I don’t believe churches should be outright boosters for political campaigns, I also think churches should not have to face the threat of audits and revoked tax-exemption because of speech deemed “political.”
Enjoy your chains.
[withdrawn by author]
What I want to know is what happens now. Does a group of people have the right to live as an enclave apart from the rest of the country without sanctifying gay marriage?
I doubt it.
I don’t think polygamy is allowed in religious enclaves.
OK, but that only happened because the executive power chose to do that. What if Ted Cruz were president and a state had a conservative governor who ignored the SC decision, basically telling the localities to do what they want?
Also, the troops were there just to keep order, not to shoot people who refused to work in integrated schools.
Vaya con Dios.
Dear Justice Kennedy,
The Mormons called. They’d like a word with you…
and making one up out of whole cloth as done here (which is indefensible, or should be).
Well there is the fourteenth amendment, so there was no need to make one up….
Only the finacially sound states would secede. Then we’ll only be left with the basketcase blue states.
That’s absurd.
It is a huge deal, and a lot of change will follow it.
Scalia is rather different from the other conservative justices, though. He and Thomas often vehemently disagree.
Scalia’s acceptance of prior Progressive rulings on economic freedom is particularly galling to me. When I asked him (and yes, I did get a chance to ask Scalia a question once), it seemed to me that Scalia had bought into Holmes’s notion that there aren’t any common-law protections of economic freedoms. [CoC]amamie! Anyone who was up on his Coase or Epstein would know that there are!
There are some decisises which just shouldn’t stare. That includes a long run of
badly-decideder Progressive rulings stripping citizens of the economic freedoms we’re supposed to enjoy as heirs to the Anglosphere tradition of property rights – and our own Constitution.Is there a list of which churches will be stormed first?
Has anybody heard what conscience protections the majority did provide? Were there any, or was there just a statement that religious groups have the First Amendment right to advocate their opinions on SSM?
My concern, as a pastor, is that simply saying I have the right to my opinions is nice, but where and how do I get to exercise them, especially as an agent of the state with regards to marriage? I can’t see any logical coherence in allowing a certain class of agents of the state to deny citizens their constitutional rights… but there I go expecting coherence from the Supreme Court…
I haven’t heard any specifics, yet, so my only assumption is the platitude, and that the reality will be worked out in later cases. I suspect that it will end up as something analogous to the Bob Jones ruling, which I guess gives me a few years to save up to pay the taxes when we lose our tax-exempt status.
Can anybody point me to anything substantive?
This part of the decision was clearly intended to head that off
In a world where the rule of law mattered, I don’t see how that limitation would survive, but let’s face it, there is no rhyme or reason to the law under this SCOTUS. The law is whatever they feel like, and as long those 9 people remain bigoted against polygamists, it won’t happen. They don’t care that they are bigoted against polygamists after disclaiming people who disagree with them as bigots. Being a lefty means never have to have internal consistency in your beliefs.
I have no idea how you think that opposition to same-sex marriage only dates back to 2004. What happened to the millennia of history before this? You do realize there are Ricochetti who have opposed same-sex marriage for far longer than 11 years? Next, I suppose you are going to tell me “We’ve always been at war with Eastasia”.
And I’ll take the entertainment any day over the naked use of raw political power that is liberal jurisprudence. Don’t like something? Find a right in the constitution to change it.
Hypocrisy is the compliment that vice pays to virtue.
This statement reveals the complete lack of integrity in C.J. Roberts.
This week, the United States Supreme Court has truly become an embarrassment to the judicial system: Obamacare decision, the misnamed fair housing case, and this decision.
For same sex marriage is to become a reality in this country, it should have been by legislative acts. Finding it to be a constitutional right, overturning millennia of human common understanding of marriage definition, is beyond the pale, but par for the course for this Supreme Court.
I strongly disagree with those who write here that, in five years, this will be forgotten. There is something tremendously more significant here, of more perpetual effect, than mere gay marriage, or abortion, or health insurance.
Obama promised to fundamentally change this country. Today, his promise reaches its greatest fulfillment.
Today, the fundamental structure of our government has been changed. Building upon similar reasoning in Roe v. Wade, the Court — in both King v. Burwell and this case — has transmogrified our entire legal and governmental system.
Before, we were a nation of laws, ruled by our joint compact, the Constitution. We were its servants, all of us . . . even the President, and Congress, and the Supreme Court. No one was above the law; no one was above the Constitution.
Today, we have become servants of those who have wrested that authority away from the law, from the Constitution. Today, all power resides in the President, and/or whomever he/she appoints to the Supreme Court, with Congress’ “advice and consent.”
Yes, the President and Congress do answer to the voters . . . but only to a majority of them. Previously, the Constitution protected the rights of the minority, which were deemed to be extrinsic to the whims of the majority, external to the moods of the majority.
No more. “Rights” are now what the majority of the Court says they are. We have achieved “pure” democracy.
God help those in the minority. God help us.
Brave new world.
Again, in your dreams. The repercussions are endless.