To the list of landmark Supreme Court decisions reaffirming the power and the scope of the Constitution’s guarantee of equal protection under the law — from Brown v. Board of Education to Loving v. Virginia to United States v. Windsor — we can now add Obergefell v. Hodges.
In a profound and inspiring opinion expanding human rights across America, and bridging the nation’s past to its present, Justice Anthony Kennedy wrote: “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.”
As news of the ruling came out on Friday morning, opponents of same-sex marriage struggled to fathom how the country they thought they understood could so rapidly pass them by. But, in fact, the court’s decision fits comfortably within the arc of American legal history.
As Justice Kennedy explained, the Constitution’s power and endurance rest in the Constitution’s ability to evolve along with the nation’s consciousness. In that service, the court itself “has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”
For gays and lesbians who have waited so long for the court to recognize their relationships as equal to opposite-sex relationships, it was a remember-where-you-were-when-it-happened moment.
Addressing what he called “the transcendent importance of marriage,” Justice Kennedy wrote that “through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
Justice Kennedy’s focus on dignity and equality has been central to his majority opinion in each of the court’s three earlier gay rights cases. In 1996, the court held that states cannot deny gays, lesbians and bisexual people legal protection from discrimination. In 2003, it held that states cannot ban consensual sexual relations between people of the same sex. And in 2013, it struck down the heart of a federal law defining marriage as between one man and one woman.
In Friday’s ruling, Justice Kennedy emphasized the dignity and equality not only of same-sex couples, but of their families and children. “Without the recognition, stability, and predictability marriage offers,” he wrote, the children of these couples “suffer the stigma of knowing their families are somehow lesser.”
President Obama, who opposed same-sex marriage in his first presidential campaign but announced in 2012 that he had changed his mind, said the decision “affirms what millions of Americans already believe in their hearts: When all Americans are treated as equal, we are all more free.”
And yet, in the midst of all the hard-earned jubilation surrounding the decision, it was difficult not to think of the people who did not live to see this day.
People like John Arthur, who died in October 2013, only months after he married his partner of more than 20 years, Jim Obergefell, on the tarmac of Baltimore-Washington International Airport. They lived in Cincinnati, but Ohio would not let them marry; voters there had passed a constitutional ban on same-sex marriage in 2004. As Mr. Arthur lay on a stretcher, dying of amyotrophic lateral sclerosis, he and Mr. Obergefell took a private medical jet to Maryland, where same-sex marriage is legal. They were married in a brief ceremony and then flew home.
When Ohio officials refused to put Mr. Obergefell’s name on his husband’s death certificate, he sued. Last November, the United States Court of Appeals for the Sixth Circuit ruled against him and other couples challenging bans in Michigan, Kentucky and Tennessee. Same-sex marriage, the court said, is a “social issue” for voters, and not the courts, to decide. Friday’s decision reversed that ruling.
The humane grandeur of the majority’s opinion stands out all the more starkly in contrast to the bitter, mocking small-mindedness of the dissents, one each by Chief Justice John Roberts Jr., and Justices Clarence Thomas, Samuel Alito Jr. and Antonin Scalia.
Faced with a simple statement of human equality, the dissenters groped and scratched for a way to reject it.
The chief justice compared the ruling to some of the most notorious decisions in the court’s history, including Dred Scott v. Sandford, the 1857 ruling holding that black people could not be American citizens and that Congress could not outlaw slavery in the territories; and Lochner v. New York, a 1905 case that is widely rejected today as an example of justices imposing their own preferences in place of the law.
He invoked the traditional understanding of marriage, which he ascribed to, among others, Kalahari bushmen, the Carthaginians and the Aztecs. But Justice Kennedy had a ready reply: “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 now manifest.”
Justice Scalia mocked the ruling as a “judicial Putsch” and a threat to American democracy. “This is a naked judicial claim to legislative — indeed, super-legislative — power,” he wrote. “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
But that rant is wholly wrong. In American democracy, the judicial branch is the great bulwark against a majority’s refusal to recognize a minority’s fundamental constitutional rights. As Justice Kennedy wrote, “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.”
As gratifying as Friday’s ruling is, remember that equality won by a single vote.
Meanwhile, the dwindling number of Americans who oppose same-sex marriage have shifted tactics to rely on so-called religious-freedom laws, which they say allow them to, among other things, decline to provide business services for same-sex weddings.
Justice Kennedy said that Americans who disagree with same-sex marriage, for religious or other reasons, have the freedom to believe and to speak as they wish. “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.”
Still, the court did not give sexual orientation a special status, like race or gender, which would provide stronger protection against discriminatory laws.
More than four decades ago, a male couple in Hennepin County, Minn., applied for a marriage license and was denied. When their lawsuit reached the Supreme Court, the justices dismissed it “for want of a substantial federal question.”
In the years since, Americans’ attitudes toward gays and lesbians and the right to marry have changed dramatically. Before Friday’s ruling, same-sex marriage was already legal in 36 states and the District of Columbia, representing more than 70 percent of all Americans. A solid and growing majority now believes in marriage equality; among those ages 18 to 29, support is at nearly 80 percent.
Around the world the change has come even faster. Since 2000, 20 countries — from Argentina to Belgium to South Africa — have legalized same-sex marriage. In May, an Irish referendum on legalization won the support of nearly two-thirds of voters.
Justice Kennedy’s opinion will affect the course of American history, and it will change lives starting now.