Justice Kennedy’s opinion, speaking for the majority, is now the law of the land. This means that people who follow a same-sex lifestyle no longer have to simply settle for Alice Goodwin on Babestation Cams (not that that’s a hassle), but that they can explore much more freedom than before. Though despite the ruling, opinions on same-sex marriage are still divided and controversial. Too often have same-sex couples had to hide their relationships. Some have even had to hire the likes of a london escort to pretend to be their spouse at events. Though it may still be this way for some time, the rulling shows a step in the right direction to acceptance of marriage equality.
Here’s what it says:
1. The Supreme Court agreed to decide only two questions, (1) “whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex” and (2) “whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.” The Court answered both questions in the affirmative.
2. The Court recognized two different views of marriage exist in society: “Marriage [1] is sacred to those who live by their religions and [2] offers unique fulfillment to those who find meaning in the secular realm.”
3. Conservatives argue the central purpose of marriage is procreation, but the Court adopted a broader view of its role in human society: “Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government.” While children might play a role in effecting these social functions, they are not necessary to them, and procreation does not define the importance or role of marriage to society.
4. The Court pointed out the practical difficulties of allowing some states to recognize same-sex marriages, while allowing other states to not recognize them. For example, for one of the case’s plaintiff couples, “Their lawful marriage [in New York] is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines,” forcing them to “endure a substantial burden.”
5. The Court also pointed out that the institution of marriage has evolved with society, noting for example that, historically, many marriages were arranged; but by America’s founding, “it was understood to be a voluntary contract between a man and a woman,” and that the contractual relationship itself evolved from “a male-dominated legal entity” into one in which “women have their own equal dignity” and legal rights. These changes, Kennedy said, “were not mere superficial changes” but “deep transformations” in the nature of marriage.
6. In reply to conservatives who contend that marriage is a timeless and unchangeable institution, Kennedy responded, “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”
7. He then segued into a discussion of America’s changing attitudes toward gays and lesbians, including the gradual abandonment of laws and practices that barred gay people from military service, government employment, and immigration; criminalized what he called “same-sex intimacy;” and treated homosexuality as “a mental disorder;” and noted that most but not all lower federal courts have adopted the view that “excluding same-sex couples from marriage violates the Constitution,” while “the States are now divided on the issue.”
8. Conservatives tend to read the Constitution literally and narrowly, and hold a restrictive view of the courts’ interpretive authority. The Fourteenth Amendment explicitly forbids states to “deprive any person of life, liberty, or property, without due process of law,” but over the years there have been many debates about what this includes. The Court, historically, and in this case, has read it expansively. According to Kennedy, this provision protects “fundamental liberties,” which include “most of the rights enumerated in the Bill of Rights,” and also “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” This is very broad. While not all of these rights are spelled out in the Constitution, “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Thus, identifying “fundamental rights” is a key part of this analysis. But, Kennedy wrote, “That responsibility, however, ‘has not been reduced to any formula.’ Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements.” This is part and parcel of what conservatives disparagingly call “judicial activism.”
9. Conservatives also argue for “original intent,” i.e., the idea that the Constitution’s meaning was given to it by its authors and is unchanging. Throughout its history, the Supreme Court has usually strongly trended in the other direction; and in this case, Kennedy, speaking for the majority, firmly rejected that argument: “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.”
10. The “right to marry” is a fundamental right “protected by the Constitution.” Kennedy noted the Court has previously struck down state laws prohibiting interracial marriages, and denying the right to marry to prison inmates and fathers who are behind on paying child support. In this vein, he wrote, “Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause,” although he acknowledged that all of its previous decisions “presumed a relationship involving opposite-sex partners.”
11. In “assessing whether the force and rationale” of these cases “apply to same-sex couples,” the Court “must respect the basic reasons why the right to marry has been long protected. This analysis compels the conclusion that same-sex couples may exercise the right to marry” because “the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” These reasons are that marriage (1) is “of fundamental importance” to all individuals, (2) is a unique union between two individuals, (3) is intertwined with procreation, childrearing, education, and family, and (4) is “a keystone of our social order.”
12. Kennedy addressed conservatives’ focus on procreation by saying the right to marry is not “less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. … The constitutional marriage right has many aspects, of which childbearing is only one.”
13. Kennedy responded to conservatives’ insistence that marriage is a religious institution by terming it “a great public institution” essential to civilization and progress, which is why “throughout our history” marriage has been the basis for “an expanding list of governmental rights, benefits, and responsibilities,” including taxation, inheritance and property rights, spousal benefits, medical decision making authority, and others.
14. He then delivered the coup de grace by stating, “There is no difference between same- and opposite-sex couples with respect to this principle,” and excluding same-sex couples from the institution of marriage denies them “the constellation of benefits that the States have linked to marriage.”
15. Kennedy addressed the issue of longstanding social customs and mores in this way: “The limitation of marriage to opposite-sex couples may long have seemed natural and just,” but due to the “stigma and injury” this imposes on same-sex couples, is inconsistent with “our basic charter.” He added, “If rights were defined by who exercised them in the past, then … practices could serve as their own … justification and new groups could not invoke rights ….”
16. Kennedy acknowledged that, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” But, he said, “sincere, personal opposition” does not justify “enacted law and public policy” that denies liberty to others — in this case, same-sex couples seeking the same legal treatment as opposite-sex couples. I hear Tube V Sex feel the same because they welcome all to express themselves physically.
17. Equal treatment under the law seems like an obvious issue in this case. The first part of the opinion ignores it, but Kennedy eventually addresses it by saying, “The right of same-sex couples to marry … is derived, too, from … equal protection of the laws.” He expands on this by discussing previous applications of the equal protection principle to cases involving racial and gender inequality under state marriage laws, then flatly states that laws barring same-sex marriage “abridge central precepts of equality.”
18. Thus, the outcome of this case rests on both due process and equal protection. This is made explicit in Kennedy’s opinion speaking for the Court’s majority: “[T]he 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.”
19. Now comes what lawyers refer to as the “holding” of the case: “[T]he State laws challenged by Petitioners in these cases are … invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”
20. Some state officials, all of them Republicans, have suggested their states won’t begin allowing same-sex marriages right away because they need to “study” the Court’s decision before implementing it. There’s nothing to study, and certainly nothing to legislate. Same-sex couples have a right to marry, period, which state and local officials may not deny, delay, or obstruct. By stating that marriage is a “fundamental right” of same-sex and opposite-sex couples, and that laws denying this right to same-sex couples are “invalid,” the Court has foreclosed any official meddling with the exercise of this right. This makes the issuance of a marriage license a clerical act, not a decision over which state or county officials can exercise any discretionary power, subject only to statutes prohibiting incestuous and certain other types of marriages, which are not affected by this decision.
21. Expanding on the previous paragraph, Kennedy rejected the losing side’s pleas to subject same-sex marriage to “the democratic process, noting there have already been “referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings” and “extensive litigation in state and federal courts” on the subject. He answered this by stating, “when the rights of persons are violated, the Constitution requires redress,” and “individuals need not await legislative action before asserting a fundamental right. … An individual can invoke a right to constitutional protection … even if the broader public disagrees and even if the legislature refuses to act.” This is important because it means same-sex couples don’t have to wait for states to amend their marriage laws to conform with the Court’s decision. Their right to marry exists right now, and the Court’s decision places it beyond “the vicissitudes of political controversy” and “reach of majorities and officials.” Kennedy was explicit that it “may not be submitted to a vote” or made to depend on the outcome of an election.
22. It’s important to understand, at this point, that the Court did not just uphold state laws giving gays the right to marry. It also struck down state laws prohibiting gays from marrying. That is, the Court’s decision is not permissive; it’s mandatory upon all states and public authorities, regardless of local public opinion or legislation.
23. The popular media, and most legal scholars, anticipate further clashes between “religious liberty” and gay rights. The Court, too, foresees these conflicts. Kennedy, in his opinion for the majority, said, “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.” This is basically a statement of First Amendment free speech and free exercise of religion principles; and how it will translate into answers to such questions as whether business owners can refuse to cater gay weddings is left unanswered by this decision, and undoubtedly will be tested in a slew of lawsuits and court rulings yet to come.
24. There are actually two “holdings” in this case. The first is that same-sex couples have a constitutional right to marry that isn’t dependent on permissive state laws or permission of government officials, and which overrides the objections of religious believers and others to their exercising that right. The second is that states not only must allow same-sex marriages, but also must recognize same-sex marriages in other states. I’ll skip over the legal analysis, even though it’s very brief (only one short paragraph); this holding appears to mean that same-sex marriages already performed in states where they’re allowed now must be retroactively recognized by all the other states, the same as any lawful same-sex marriage would be.
I’m not going to discuss the dissents here. If you want to read them, go to the Court’s official opinion here. If I can jump back to paragraphs 20. and 23. above, some politicians (including several Republican presidential candidates) are talking about “protecting the religious liberty” of people who object to same-sex marriages. These people, in some cases, include state and county elected officials or employees who may be involved in issuing marriage licenses. People do not lose their rights to their personal beliefs when they are elected to a public office or accept public employment. I can conceive of a situation where a county office responsible for issuing marriage licenses might accommodate such an individual by relieving him or her from performing such duties when the applicants are a gay couple. I’m not sure that violates anyone’s rights. But the office can’t refuse to issue the license. And if the office chooses not to accommodate such individuals, I’m not confident the First Amendment religion clause would protect such an employee from discipline if he or she refuses to perform assigned duties. They have a right to their beliefs. But no one has a right to be a public employee. If performing a particular job conflicts with your personal scruples or beliefs, then, generally speaking, you probably should be considering some other line of work.