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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.
Jamie, I am not going into defensive mode on this. Socialization is a subtle thing but very, very real. That is what we are talking about, not whatever your fevered mind has produced.
Please don’t lecture me on when to support churches. Churches were WRONG on this issue in my eyes. They are not wrong however in their desire for freedom of conscience on any issue.
You have absolutely no evidence for this.
You don’t have to be religious to value freedom, Merina.
The non-religious have consciences too. The evidence proves that the tax exemption for charitable giving does not affect the rate of giving. Americans are awesome.
Considering that Utah is a net federal recipient when it comes to the spending /taxes paid ratio, you may want to reconsider whether or not Mormon-dominated Utah would want to make SSM any sort of reason for leaving the Union.
Again, Merina, I know you’re upset at this decision. You’re doing yourself no favors by engaging in secession crazy-talk.
Fevered mind? I thought you were better than that.
Mr. Lockett, you should be more polite when you disagree with people on such matters–that is, if you think them at all respectable. This is a strange situation. People are getting angry or already are angry. Can we not try not to react with contempt? We have some things in common among us–especially the opinion that constitutionalism was violated & should be defended–so we might try to build on that common ground…
What was said has nothing to do with homosexuals being predators or being seen as such. No one asserted that. Whether one homosexual or many or none is involved in the sort of thing that worries people with kids in schools has nothing to do with it. The argument, in its simplest form, was presented thus: Kids are very easily persuaded to say or believe or do things, including things detrimental to themselves. I am surprised that you have no care nor no curiosity regarding the experiences that brought up these worries. The assumption, as it seems to me, that there are no such experiences or causes of worry & that the people speaking to you are quite insane is not all of charity or even common courtesy.
Brad, I’m a Mormon. It’s not crazy talk. Look at how religious people and non-religious people who don’t support this have been treated. Get used to it. Marriage and family are at the core of our belief system. We simply cannot and will not change our view of marriage and family. Where, in your mind, does that leave us?
Excuse me, but I’ve been nothing but polite. I still call a spade a spade.
See Titus’ comment.
Accusing people of homophobia is not polite, especially here.
I said “bordering on” and I stand by that statement.
No. The Court decided that distinctions are the same thing as discrimination.
Try this one for size:
The justices were faced with a decision of whether the 14th amendment should apply to convicted felons.
The justices were faced with a decision of whether the 14th amendment should apply to minors.
The justices were faced with a decision of whether the 14th amendment should apply to people under 21.
The justices were faced with a decision of whether the 14th amendment should apply to non-veterans.
Conservatives should not indulge in such sloppy use of language.
Copying from the OP–this in and of itself is cause for Paul Revere-level alarm:
I truly do wish we would form a new country but I fear that too many of the people, even in deep red states, lack the will to roust themselves from their cultural slumber to make it happen. Most folks just aren’t that political.
However, this new SSM ruling may wake people from their slumber when the inevitable damage it causes hits close to home in their churches and schools.
We can only hope so. (for the formation of a new country, not the damage from this ruling, of course.)
To all,
This is the central fallacy of the argument. The reason that Marriage is unlike any other two person union in its importance is that it includes the potential for procreation. Only Heterosexual Monogamy qualifies as Marriage for this very reason. Without Heterosexual Monogamy there is no reason for Marriage to exist in the first place. Contract law would be sufficient and is sufficient to handle the needs of same sex relationships.
What the Supreme Court has done is proven that it doesn’t understand what Marriage is. As their decision on the ACA proved that the Supreme Court doesn’t understand English, I am not at all surprised by this ruling.
Regards,
Jim
You refused to understand what I actually said about socialization and how it occurs. I don’t consider that polite.
Combine the logic of this decision with the vitriol expressed and the tactics employed in the battle flag debate this week, and you begin to see a very scary picture that should concern anyone on either side of this debate who is honest in their concerns for a liberal (proper) society and a free citizenry.
Can we not imagine the next step being not only public recognition of gay marriage, but cries that any institution which holds a different opinion lose both its tax exempt status, lose the right to perform marriages which do not totally comport with the state’s view, and even face the kind of storm of name-calling and -isms (persecution?) faced this week by anyone who argued against the view that the flag should be removed from the site of a memorial?
It does not startle conservatives to see this, we’re very familiar with the “tolerance” of the Left. But what about the mainstream American who is particularly politically active? Will they see the sea change underneath their feet?
The next election cycle’s ante is certainly upped by the fact that Anthony Kennedy will be 80 next year.
Yes Marci–exactly.
I’m not sure why though. Merina said that she expected more homosexual advocacy in schools…a comment that hardly seems controversial.
I understand it. And I stand by my statement.
I’m all for it if it leads to a new country based on federalist principles and the founder’s original intent.
Begun, this left-libertarian troll fest has.
Yes–very good idea.
She said “recruitment” I took that to mean recruitment into homosexuality – which is utter nonsense and a stones throw away from the PSA I linked.
If this was not her meaning she is free to clarify.
Scalia essentially states in his dissent that we live in a Judicial Tyranny.
“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.”
Correct me if I’m wrong, but what Roberts says about the Constitution is pretty different from what he said about lesser laws yesterday.
I like his citation of Cicero. Very classy. That brings him up a notch in my estimation.
Again, do you have children of school age?
Were you ever an adolescent?
Wow I am impressed. This thread went about 100 comments before the name calling started. That has to be a record on a SSM thread
Hi gang, I do not have it in me to read all 8 pages (so far) of comments. I just need to express my deep distress at the nastiness I see and hear everywhere. The vast majority of it is coming from my gay friends (in fact I can’t think of one instance coming from an SSM opponent). Do they really think that by this new right all people will have to like them and be nice to them from now on? Good luck with that.
I am not generally pessimistic, but I fear the near future for anyone expressing any sort of dissent.
How do you separate these? High-fiving anyone who declares they are gay is a form of recruitment. This sort of thing will happen in a hundred ways, large and small. Kids thrive on praise and approval from teachers and those in authority. This is a distinction without a difference.
By the way…
I told you so. =P
It was never possible for the states to disagree on this. First, the federal government had its own laws (tax incentives) dependent upon marriage and was forced to choose what to recognize or not as marriage. Second, the “one man, one woman” aspect of marriage is so fundamental to traditionalists that traditional states would clearly not be willing to recognize SSM contracts from other states, leading to a variety of local judicial dilemmas (regarding divorce, parental rights, and adoptions, for example). Third, gay advocacy groups (both legal and non) have obviously been seeking cultural normalization, rather than mere tolerance or equal access to services; and they have exhibited no tolerance of dissent.
As for how SCOTUS would rule, I expected this but was not as certain. One thing was clear, though: some of the judges rule so whimsically that even very learned Constitutional lawyers like Epstein, Yoo, and Freedman can only guess.
Sadly, I can’t say all of my predictions are validated like this. But it’s nice to be proven not a complete idiot every once in a while.