Putting itself back in the forefront of the gay rights revolution, the Supreme Court ruled by the narrowest margin on Friday that same-sex couples across the nation have an equal right to marry. The five-to-four decision was based firmly on the Constitution, and thus could be undone only by a formal amendment to the basic document, or a change of mind by a future Supreme Court. Neither is predictable.
Explicitly refusing to hold off deciding the issue to see how other parts of society may deal with the rising demand for gay acceptance and legitimacy, the Court declared that two clauses in the Fourteenth Amendment mean that a “fundamental right to marry” can no longer be denied because the partners are of the same sex. It did not create a new right, but opened a long-existing one to those partners.
The ruling was the most important victory in a cultural revolution that began almost exactly forty-six years ago, when patrons of a gay bar — the Stonewall Inn in New York City’s Greenwich Village — fought back against a police raid. The events that began on the night of June 28, 1969, are widely known as the beginning of “gay pride” and an unapologetic campaign for equality.
The decision in Obergefell v. Hodges expressly overruled the Court’s only prior ruling directly on same-sex marriage — a one-line decision in the 1972 case of Baker v. Nelson, declaring that a claim to such marriage did not raise “a substantial question” for the Court to resolve.
Over the last two years, the right to marry has been extended rapidly and widely for gays and lesbians, ultimately expanding the places where they may marry legally to thirty-six states and Washington, D.C., through new laws, court rulings, or voters’ approval. From a 2003 ruling by the highest state court in Massachusetts allowing same-sex marriage, the movement to gain marital rights had spread from coast to coast, with lawsuits in every state where the right had not yet been recognized.
The decision on Friday will open marriage legally in the remaining fourteen states, and will give new legal protection for those who got married under court rulings that actually could not be considered truly final until the Supreme Court itself had decided the constitutional question. The decision nullified bans on same-sex marriage as well as bans on official recognition of such marriages performed outside a state. Both prohibitions, it said, violate the Fourteenth Amendment’s guarantees of due process and equal protection.
The Court majority acknowledged that the debate over the social and moral dimensions of marriage will go on, and even reminded the debaters that they will have the protection of First Amendment free speech rights, but it stressed that the Constitution will not tolerate a ban on same-sex couples from marriage “on the same terms as accorded to couples of the opposite sex.”
Much of the ongoing debate will focus on claims that same-sex marriage will intrude on the religious rights of those whose faith tells them that the institution should be open only for opposite-sex couples. A number of legislatures already had begun anticipating Thursday’s rulings, passing measures to give businesses and others a legal right not to accommodate same-sex couples. How long an active backlash will continue with intensity will be known only as it unfolds.
In the meantime, perhaps hundreds of thousands of same-sex couples will obtain licenses and be married, opening access for them to a wide array of state and federal benefits that go with marriage — ranging from better tax treatment to equal status as parents. In any state where a ban remains technically on the books, it remains possible that state and local officials will engage in resistance, thus making it necessary for couples to get court orders to assure their access to a license.
Under the Supreme Court’s rules, it does not issue a formal order to put into effect a decision. Rather, the Court’s clerk will send a copy of the decision to the lower court whose ruling was being reviewed — in this case, the U.S. Court of Appeals for the Sixth Circuit, which had upheld the same-sex marriage bans in all four states in its geographic reach.
That transmission is likely to occur within a few weeks, adding the states of Kentucky, Michigan, Ohio and Tennessee to the places where same-sex marriage will become available. Cases involving the other ten states where bans had remained in force up to Friday are likely to be resolved quickly by the federal appeals courts in the First, Fifth, and Eighth Circuits. In fact, within hours after the Court issued its rulings, lawyers for same-sex couples and state officials began filing new pleas in lower courts to let same-sex marriage licensing to begin, and officials in a variety of states went ahead to issue such licenses.
The outcome on Friday was not assured before Justice Anthony M. Kennedy began announcing his opinion for the majority right after 10 a.m., but many had expected that result and that Kennedy would write for the majority. He has been the author of each of the Court’s most recent rulings advancing the gay rights cause under the Constitution.
His twenty-eight-page opinion echoed many of the themes of individual liberty that have become an identifying mark of his views on the rights of gays, lesbians, and transgender people. And much of the rhetoric was an echo of his opinion two years ago, striking down a key part of the federal Defense of Marriage Act — a ruling that, in some ways, forecast Friday’s outcome even though Kennedy had insisted that a right to marry was not an issue in the DOMA case.
A curious aspect of the new ruling was that, once again, Justice Kennedy did not spell out what constitutional test he was applying to a claim of gay equality. It simply discussed a series of court precedents, and his own recitation of notions of liberty, without saying what burden those challenging the bans had to satisfy before winning the right to equality.
Kennedy read a summary of his opinion in a calm voice, laying out a series of liberty principles that led to the conclusion. When he had finished, Chief Justice John G. Roberts, Jr., read from the lead dissenting opinion, chastising the Court majority for reviving an old discredited judicial tradition of writing a judge’s own social perspectives into the Constitution. But the Chief Justice concluded his oral rendition with an invitation to gays and lesbians who won a new right to celebrate it, so long as they did not celebrate the Constitution; that, he said, had nothing to do with the decision Friday.
The Kennedy opinion was supported in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
Aside from the Chief Justice, each of the dissenters wrote an opinion: Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas.