2 years to the day after Windsor and Hollingsworth, the U.S. Supreme Court has ruled firmly in favor of marriage equality in Obergefell v. Hodges and the cases linked with it. After Windsor, no one should be surprised that Obergefell was decided this way on due process and equal protection grounds under the 14th Amendment to the U.S. Constitution. And no one should be surprised that it was Justice Anthony Kennedy once again writing eloquently for the majority in favor of marriage equality, as he did in Windsor.
I’m going to keep this simple. The Court has decided, in a great many past cases, that marriage is a fundamental right guaranteed by the Constitution. Since marriage IS a fundamental right, it cannot be denied to certain citizens. There is no basis in the Constitution for denying the right of same sex couples to marry; in fact, there is nothing in the Constitution regarding marriage at all. But since the U.S. has decided on the government sanction of relationships in the form of marriage (with countless rights and duties attached to the recognition of such relationships), governments must apply that sanction equally. Once a right is enshrined as fundamental, we don’t get to deny it to some citizens and allow it for others. That’s it.
Justice Kennedy, in deciding this case in favor of equality, has written some passages that it would behoove opponents of marriage equality (including the dissenting Justices) to read and think on:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long held the right to marry is protected by the Constitution.
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Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.” (P. 11.)
“If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.” (P. 18.)
“Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” (P. 20.)
“Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.
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The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’ West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’ Ibid.” (P. 24.)
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” (P. 27.)
“They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” (P. 28.)
Times change. This country changes and grows. So, then, must the law change and grow. Simply, the state-sanctioned fundamental right of marriage must be equally applied. If you want to deny same sex marriage in your church, have at it, the 1st Amendment protects you. The government, however, is not your church, and it must respect the liberty and dignity of all citizens.
Finally, small notes for the small minds of the dissenting Justices:
* To Justice Alito: Quoting your own dissent in Windsor & harping on “tradition” – how predictable.
* To Justice Roberts: Your argument that only “traditional” marriage is a fundamental right, and your need to reach back to 1828 for a definition of marriage, smack of desperation.
* To Justice Scalia: If you really think that the Court has no power to rule over such issues as this one, why don’t you just state outright that you think Marbury v. Madison should be overturned and that the U.S. Supreme Court shouldn’t exist, and go ahead and quit your position in protest?
*To Justice Thomas: You went as far back as 1787 for a definition of liberty (I don’t need to say how ridiculous that is, do I? I’ll leave that to Jamil Smith, who nails it.), and you don’t even think substantive due process exists. Not sure why you became a judge when clearly your heart is in court procedure, so you should have been a clerk of the court. Go do that.
The DL Legal Breakdown 