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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
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Supreme Court Strikes Down State Bans Against Same-Sex Marriage

(CN) - Overturning state bans against same-sex marriage, the Supreme Court found 5-4 Friday that marrying is a civil right for all people, regardless of gender.

"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," the majority opinion penned by Justice Anthony Kennedy states. "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."

Early on in the 28-page decision, Kennedy highlighted three of couples who brought the constitutionality of state bans on same-sex marriage to a head: James Obergefell and John Arthur in Ohio; April DeBoer and Jayne Rowse in Michigan; and Ijpe DeKoe and his partner Thomas Kostura in Tennessee.

The opinion concludes with the finding "that there is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character."

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family," Kennedy wrote. "In forming a marital union, two people become something greater than once they were. 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."

Chief Justice John Roberts led the dissent Friday for the conservative faction of the court, but a separate dissent by Justice Antonin Scalia is particularly acidic.

"The [majority] opinion is couched in a style that is as pretentious as its content is egotistic," Scalia wrote, adding that its "showy profundities are often profoundly incoherent."

Quoting Kennedy, and following up with analysis in parentheses, Scalia wrote: "'The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.' (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)"

The much-anticipated decision comes two years after the court broke gay-rights ground in striking down the federal Defense of Marriage Act.

In the earlier case, which Kennedy wrote for a high court majority as well, DOMA kept a New York widow named Edith Schlain Windsor from qualifying for the estate-tax exemption on spousal inheritance when her wife, Thea Spyer, died in 2009.

Though New York legalized same-sex marriage in 2011, DOMA's definition of marriage as the union of one man and one woman denied their union federal recognition.


A few other states still had bans against gay marriage on the books at the time, but the Supreme Court did not address then whether marriage equality for all is protected by the Constitution - or whether the definition of marriage should be left to the states - when it struck down the unconstitutional element of DOMA in 2013.

Many courts have since used Windsor as precedent for overturning state bans against same-sex marriage, and the Supreme Court agreed earlier this year to decide whether these states violate the equal-protection rights of same-sex couples.

In addition to the District of Columbia, 16 states have passed legislation or ballot initiatives legalizing same-sex marriage. Federal judges in 21 other states meanwhile have ordered state clerks to begin issuing marriage licenses to same-sex couples, based on the finding that state laws banning on same-sex marriage discriminate on the basis of sexual orientation in violation of the 14th Amendment.

The Sixth Circuit, which hears appeals from federal courts in Kentucky, Ohio, Michigan and Tennessee, created a circuit split in upholding state laws banning same-sex marriage.

At Supreme Court oral arguments for the case in April, Kennedy echoed his points about dignity from Windsor.

Kennedy revisited this theme in Friday's opinion: "The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life."

Though marriage has historically always meant a bond between a man and a woman, Kennedy said marriage should not stand in isolation from developments in society.

"History and tradition guide and discipline this inquiry but do not set its outer boundaries," Kennedy said. "That method respects our history and learns from it without allowing the past alone to rule the present."

States in which same-sex couples have been allowed to adopt children are a testament to the loving endurance of such families, but Kennedy noted that, "without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser."

"They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life," Kennedy wrote. "The marriage laws at issue here thus harm and humiliate the children of same-sex couples."

As for the opponents of same-sex marriage, the majority noted that they do so based on "honorable" religious and philosophical grounds.

"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 wrote. "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."

Each of the court's conservative justices wrote separate dissents.

Roberts, whose opinion was joined by Justices Clarence Thomas and Scalia, said that the majority's position had "undeniable appeal" but that "the court is not a legislature."

"Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not," Roberts said. "The fundamental right to marry does not include a right to make a State change its definition of marriage."

The Constitution does not define marriage, according to the dissent, and the people of each state should have the power to determine whom to recognize within the bonds of marriage.

"Today, however, the court takes the extraordinary step of ordering every State to license and recognize same-sex marriage," Roberts wrote. "Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."

Thomas joined the far more angry opinion by Scalia.

"The substance of today's decree is not of immense personal importance to me," Scalia said, explaining that the law may recognize and grant benefits to whatever relationships it wishes.

"It is of overwhelming importance, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact - and the furthest extension one can even imagine-of the Court's claimed power to create 'liberties' that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

Justice Samuel Alito wrote that the majority's opinion "will be used to vilify Americans who are unwilling to assent to the new orthodoxy."

"I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools," Alito added.

Those who hold to a traditional understanding of marriage will be marginalized and ostracized, the judge said, by a decision imposed top-down without allowing a full public debate.

"If a bare majority of justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today's majority claims," Alito concluded.

Plaintiffs' attorney Mary Bonauto was thrilled with the decision. "Today's ruling brings joy and relief to millions of Americans and their families," she said in a statement.

"It lifts up LGBTQ people and affirms that laws cannot allow discrimination or categorical exclusions of LGBTQ people simply for who they are. No single ruling can fix the scarring prejudice and stereotypes that have plagued good people for so long, but this can go a long way in helping people discover their common humanity."

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