Supreme Court Rules Gay Marriage Bans Are Unconstitutional [cont.]

Supreme Court Rules Gay Marriage Bans Are Unconstitutional

By Mark Joseph Stern

The Supreme Court brought marriage equality to all 50 states.

Photo by Alex Wong/Getty Images

On Friday, the Supreme Court held that all same-sex marriage bans violate the 14th Amendment of the federal Constitution. The decision effectively brings marriage equality to every state in America. As predicted, the court split 5–4, with Justice Anthony Kennedy writing the majority opinion invalidating the bans. There is no resolution of the scrutiny question—that is, whether laws targeting gays must be subject to especially stringent judicial scrutiny. Instead, the opinion paints in broader strokes. Kennedy writes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. 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. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Kennedy grounds his opinion in two separate but related provisions of the 14th Amendment: the due process and equal protection clauses. The "liberty" protected by the due process clause, Kennedy explains, protects gay couples’ fundamental right to marriage. And the equal protection clause bars the government from singling out a specific group—here, gays—and depriving them of certain rights. Kennedy nicely describes the "synergy between the two protections":

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The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. 

In a predictably raging dissent, Justice Antonin Scalia accuses the majority of writing “the mystical aphorisms of the fortune cookie,” and howls that its “opinion is couched in a style that is as pretentious as its content is egotistic.” The opinion's “showy profundities,” he writes, “are often profoundly incoherent.” He also calls the ruling a “threat to American democracy.”

Somewhat surprisingly, Chief Justice John Roberts penned the principal dissent, despairing that “The majority’s decision is an act of will, not legal judgment.” His dissent, while more measured than Scalia’s, is quite sharply worded:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. 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. But do not celebrate the Constitution. It had nothing to do with it.

For gay rights advocates, the date of the decision is especially notable. On June 26, 2003, the court legalized same-sex intimacy, and on June 26, 2013, the court struck down the federal same-sex marriage ban. Today, June 26, 2015, the court brought marriage equality to the entire country.