Supreme Court Backs Gay Marriage
The Supreme Court has legalized gay marriage nationwide by ruling that the U.S. Constitution bars states from denying marriage licenses to same-sex couples.
The landmark, 5-4 decision split the court along the usual ideological lines, with Republican appointee Justice Anthony Kennedy joining the court's liberal wing to back same-sex marriage rights and the court's remaining GOP appointees dissenting.
The majority opinion, authored by Kennedy, was framed as a legal interpretation of the constitutional rights of gays and lesbians. However, the decision appeared to reflect and ratify one of the most dramatic and rapid shifts in public opinion on a high-profile social issue in American history.
Kennedy bluntly rejected arguments from same-sex marriage opponents that allowing gay and lesbian couples to marry would undermine and disrespect the marriages of heterosexual couples.
"In forming a marital union, two people become something greater than once they were," Kennedy wrote. "As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves."
In a rare occurrence, all four justices who disagreed with the majority authored dissents.
Chief Justice John Roberts wrote that the court's ruling unwisely short-circuited the democratic process.
"Understand well what this dissent is about: It is not about whether, in my judgment, the institution of mar\0xADriage should be changed to include same-sex couples," the chief justice said. "It is instead about whether, in our democratic republic, that decision should rest with the people acting through representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer."
Roberts also advanced an anti-same-sex marriage argument many gay rights advocates find offensive: that approving the practice could lead court rulings forcing official recognition of polygamy.
"From the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world," the chief justice wrote. "If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one."
Justice Antonin Scalia went even further than Roberts in denouncing the justices in the majority, accusing them of what amounts to a coup.
"What really astounds is the hubris reflected in today's judicial Putsch," Scalia wrote in his dissent. "These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution."
Scalia also mocked Kennedy's writing, calling it "pretentious," "often profoundly incoherent," and reminiscent of the sayings in a "fortune cookie."
"If, even as the price to be paid for a fifth vote, I ever joined an opin\0xADion 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," Scalia quipped in a footnote.
While Scalia joined Roberts' dissenting opinion, Roberts did not join Scalia's, suggesting perhaps that the chief was unwilling to embrace some of Scalia's most heated rhetoric.
President Barack Obama quickly hailed the court's decision.
"This morning the Supreme Court recognized that the Constitution guarantees marriage equality," Obama said in his second Rose Garden statement in as many days praising the Court's decision. "In doing so, they've reaffirmed that all Americans are entitled to the equal protection of the law, that all people should be treated equally regardless of who they are or who they love."
Earlier in the day after the decision was announced, he tweeted: "Today is a big step in our march toward equality. Gay and lesbian couples now have the right to marry, just like anyone else. #LoveWins."
Prior to the ruling, 37 states issued marriage licenses to same-sex couples. However, that list could have shrunk dramatically if the Supreme Court had reached the opposite result, since most of the wave of new states allowing gay marriage did so as a result of lower court rulings the justices could have reversed.
In legal terms, the majority opinion was a sweeping victory for gay rights advocates. The court held both that marriage is a fundamental constitutional right and that denying it to same-sex couples violates the Constitution's guarantee of "equal protection of the laws." The latter holding is likely to make it even harder for governments to discriminate against gays and lesbians in any context, not just marriage.
Invoking the high court's 1967 ruling against bans on interracial marriage, Kennedy rejected the notion that gay and lesbian couples should have to wait for legislatures and voters to repeal same-sex marriage bans in place before Friday's decision
"The dynamic of out constitutional system is that individuals need not await legislative action before asserting a fundamental right," Kennedy wrote. "It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process....The petitioners stories makes clear the urgency of the issue they present to the Court."
The lead-up to the ruling generated less suspense than other major Supreme Court cases, in part because advocates on both sides were convinced that Kennedy would join the court's four Democratic-appointed justices in concluding that the Constitution does not allow states to limit marriage to opposite-sex couples.
With the new ruling, Kennedy -- an appointee of President Ronald Reagan -- extended his streak penning each of the court's major decisions in favor of gay rights in the past two decades.
In 1996, Kennedy wrote the court's 6-3 decision striking down a Colorado ballot measure that banned legal protections for gays and lesbians. In 2003, he authored another 6-3 opinion in which the court struck down on privacy grounds a Texas law prohibiting gays from engaging in sodomy. And in 2013, Kennedy wrote the court's 5-4 ruling striking down the portion of the Defense of Marriage Act that banned the federal government from providing benefits to same-sex married couples.
At the same time the court ruled in the DOMA case two years ago, the court turned down on technical grounds a California case about same-sex marriage rights.
When the court was presented last summer with cases involving rulings in favor of same-sex marriage in five states, it turned the cases down. Many observers on both sides of the issue asserted that the action telegraphed an eventual win for same-sex marriage rights nationally because the court's refusal to step into those cases allowed thousands of same-sex marriages to go forward -- a kind of on-the-ground victory for gay rights forces that might be unpalatable for the justices to reverse.
In January of this year, the court finally announced it would take up the gay marriage issue again, ruling on cases from Kentucky, Michigan, Ohio and Tennessee after the 6th Circuit U.S. Court of Appeals split with other federal appeals courts by holding that the Constitution does not require states to allow marriage of same-sex couples.
The set of four cases were argued before the justices in April. The litigants were also asked to address the question of whether if no right to same-sex marriage is found in the Constitution, states should still be obliged to recognize same-sex marriages other states choose to authorize.
The new decision explicitly overruled a 1972 ruling in which the Supreme Court -- without recorded dissent -- summarily dismissed a Minnesota gay couple's claims that denying them a marriage license violated their rights under the U.S. Constitution. As a technical matter, the case -- Baker v. Nelson -- served as a binding precedent on lower courts but it was never fully briefed or argued.
The Baker case's ongoing impact was the matter of some dispute due to a variety of developments in legal doctrine in the past four decades and the lack of an opinion in the case to demonstrate what arguments the justices considered. However, the ruling figured prominently in the recent 6th Circuit opinion that brought the justices the cases they decided .
Recent surveys have showed a clear majority of Americans favoring same-sex marriage rights and reflect a clear demographic trend, with younger voters overwhelmingly in support of the concept and older ones more likely to oppose it.
The sharp shift in favor of gay marriage took place in the past five years or so, following a series of major political victories for anti-same-sex-marriage forces in the immediately preceding years.
In 2004, voters in 11 states across the country approved bans on same-sex marriage, often doing so by a 2-to-1 margin. The drive was fueled largely by fears that a state court ruling clearing the way for same-sex marriage in Massachusetts might lead to similar decisions in other states.
As recently as 2008, the broad and solid political consensus against granting marriage rights to same-sex couples seemed to remain in place. In that year's presidential election, all major Republican and Democratic presidential candidates opposed the practice. That same year, California voters -- known for their liberalism on social issues -- backed a ban on same-sex marriage, 52% to 48%.
However, many gay rights advocates predicted that because of changing attitudes on the question within the Democratic Party President Barack Obama would have to reverse his previous opposition to same-sex marriage prior to his 2012 re-election bid.
In 2010, Obama said his views on the issue were "constantly evolving." In May 2012, Obama publicly swung behind same-sex marriage rights -- spurred to announce his decision earlier than planned because Vice President Joe Biden revealed his support for the concept.
In the case just decided by the high court, the Obama Administration urged the justices to rule in favor of a Constitutional right to same sex marriage. During the marriage litigation two years ago, the administration took a more nuanced position that stopped short of making that argument.
In the years to come, the Supreme Court's new gay-marriage decision could prove to be a boon for the Republican Party because it could quiet public debate on an issue where many members of the party's socially conservative base are at odds with the overall trend towards support for same-sex marriage rights.
However, in the near term, the issue could remain tricky for the GOP. With the 2016 presidential race underway and debates set to begin in August, Republican candidates could face pressure to denounce the Supreme Court ruling or to endorse a constitutional amendment to overturn it. Such a stance could prove popular in GOP primaries and caucuses, but be a drag on the Republican nominee in the general election.
Sen. Ted Cruz (R-Texas) is already backing such an amendment, which had the support of President George W. Bush in 2004 and during his second term.
While many Republican political operatives have been itching for the Supreme Court to issue a clear pronouncement in favor of same-sex marriage, conservative legal scholars who insist they don't oppose same-sex marriage have expressed discomfort with having the courts -- rather than voters -- lead the policy shift.
In recent months, social conservatives strongly opposed to same-sex marriage began to treat as a foregone conclusion Supreme Court decision in favor of the practice. For many activists, the focus has already shifted to a new round of legal battles over the rights of small business owners to discriminate against gay and lesbian couples.
Last year, the justices turned aside an early case in which a photographer from New Mexico refused to photograph a gay wedding and was punished under a state anti-discrimination law. Similar disputes are brewing in other states.
Religious conservatives are also up in arms over efforts to ban what they contend are forms of "conversion therapy " or "reparative therapy" aimed at getting gays and lesbians to become heterosexual.
Three states and Washington, D.C. have already banned such practices, which have been rejected by many professional groups, including the American Psychological Association. In April, the White House issued a statement that appeared supportive of efforts to implement a national ban on so-called conversion therapy, particularly when aimed at children.
However, some social conservatives insist the practices are religious in nature and that efforts to ban them violate the Constitution by intruding on religious freedom.