Supreme Court declares same-sex couples' 'fundamental right' to marry

In a decision with profound implications, the Supreme Court asserted that under the US Constitution legal marriage may not be denied to same-sex couples, extending this right to all 50 states.

Jacquelyn Martin/AP
From left, Annie Katz of the University of Michigan, Zaria Cummings of Michigan State University, Spencer Perry of Berkeley, Calif., and Justin Maffett of Dartmouth University, celebrate outside of the Supreme Court in Washington, Friday after the court declared that same-sex couples have a right to marry anywhere in the US.

In a landmark decision, the US Supreme Court on Friday ruled that gay men and lesbians enjoy a fundamental right to marry and that none of the 50 states has the power to defy that constitutional guarantee of freedom and equal protection.

In a 5-to-4 decision, the high court issued the constitutional equivalent of a grand-slam homerun for same-sex couples across the United States.

“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty,” Justice Anthony Kennedy wrote in the majority opinion.

“The court now holds that same-sex couples may exercise the fundamental right to marry,” he declared. “No longer may this liberty be denied to them.”

The high court also ruled that in addition to issuing licenses to same-sex couples, all 50 states must recognize the legitimacy of same-sex marriages performed in any other state.

Currently, 37 states recognize same-sex marriages, while 13 states had maintained the traditional definition of marriage as a union between one man and one woman.

The high court decision represents a major advance for civil and equal rights for the lesbian, gay, bisexual, and transgender (LGBT) community. It marks the continued emergence of that community from its closeted, second-class existence for much of human history. And it establishes a firm legal foundation upon which gay rights advocates will push for broader freedoms, equality, and protections.

At the same time, Justice Kennedy’s majority opinion marks a significant setback for conservatives seeking to maintain the federalist structure of government. Rather than allowing the contentious social issue of marriage to be decided by the people and their elected representatives on a state-by-state basis, the high court decided instead to constitutionalize the issue of same-sex marriage and answer the question itself.

The dissenting justices predict that that court’s actions in cutting off democratic debate over the issue will inflame opposition, rather than lead to national healing and greater tolerance. In addition, the decision sets the stage for more contentious battles ahead between gay rights activists and religious and social conservatives, they warn.

“When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are – in the tradition of our political culture – reconciled to the result of a fair and honest debate,” Chief Justice John Roberts wrote in a dissenting opinion.

That democratic dynamic was cut short by the majority decision, the chief justice said.

“By deciding this question under the Constitution, the court removes it from the realm of democratic decision,” Roberts said. “There will be consequences to shutting down the political process on an issue of such profound significance. Closing debate tends to close minds.”

Kennedy dismissed such concerns. “Of course, the Constitution contemplates that democracy is the appropriate process for change,” he said, “so long as that process does not abridge fundamental rights.”

When fundamental rights are at stake, he said, the court has a duty to address the issue.

Kennedy said that marriage was a keystone of the social order in America and that it was intolerable to exclude gay men and lesbians from full participation in that order.

“It demeans gays and lesbians for the state to lock them out of a central institution of the nation’s society,” he said.

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is not manifest,” Kennedy said.  “With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

In his dissent, Chief Justice Roberts called the majority decision “an act of will, not legal judgment.”

“The right it announces has no basis in the Constitution or this court’s precedent,” he said.

“If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision,” the chief justice said.

“Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits,” Roberts said.

“But do not celebrate the Constitution,” he said. “It had nothing to with it.”

The chief justice said the Constitution leaves to the people and their elected representatives the authority to define marriage.

“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,” Roberts said.

“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,” he said.

Friday’s decision stems from lawsuits filed by same-sex couples in four states – Ohio, Michigan, Kentucky, and Tennessee – challenging their exclusion from traditional marriage laws.

Some couples sued to be allowed to marry. Others sued to have same-sex marriages performed in other states recognized in their new state of residence.

Lawyers for the states had argued that marriage is aimed at heading-off the societal problem of unwed mothers and fatherless children. They argued that it has existed through much of human history to encourage a man and woman to remain together as a family to raise their biological offspring.

Lawyers for same-sex couples dismissed that explanation, arguing that allowing same-sex couples to marry would in no way undercut the ability of opposite-sex couples to marry and raise their own children. 

Kennedy’s majority decision comes less than two months after he commented during oral argument about the difficulty of a judge ordering the nation to change a definition of marriage that had existed throughout most of human history.

“This definition has been with us for millennia,” Kennedy said during oral argument in late April. “And it’s very difficult for the court to say, oh, well, we know better.”

But that is, essentially, what Justice Kennedy did on Friday.

In a dissent, Justice Antonin Scalia said the majority opinion represents a threat to American democracy by a majority of nine lawyers on the Supreme Court who claim the power to create liberties to be protected under the Constitution.

Scalia said when the high court wields power to revise the Constitution it robs the American people of the freedom to govern themselves.

“Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best,” Scalia said. He said the court’s decision to end the debate and resolve the issue itself was a “naked judicial claim to legislative – indeed super-legislative – power.”

“A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” Scalia said.

In his majority opinion, Kennedy said that if rights were defined only by those who exercised them, new groups would never be able to invoke those rights once they were denied. He said the right to same-sex marriage was part of the liberty promised in the Fourteenth Amendment.

“The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era,” Kennedy said.

“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophic premises, and neither they nor their beliefs are disparaged here.”

“But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied,” Kennedy said.

“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” he said.

Joining Kennedy in the majority were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Dissenting opinions were filed by Chief Justice Roberts, and Justices Scalia, Clarence Thomas, and Samuel Alito.

The case was Obergefell v. Hodges.

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