Erwin Chemerinsky is the Dean and Distinguished Professor of Law and the Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law.
The Court’s decision striking down laws prohibiting same-sex marriage will be regarded as a landmark ruling advancing equality and liberty. It is the Court playing exactly the role that it should in society: protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental.
The difference between the majority and the dissents, and between the liberal and conservative commentators, is about the appropriate role of the Supreme Court in a democratic society. Not surprisingly, the four dissenting opinions all accuse the majority of undue judicial activism and usurping the democratic process. This is always the dissent’s charge when the majority strikes down a law. Of course, none of the four dissenters seemed the least bit concerned with deference to the political process or avoiding judicial activism when two years ago they all were part of the majority in striking down key provisions of the Voting Rights Act that had been passed almost unanimously by Congress and signed into law by President George W. Bush. In that case, Shelby County v. Holder, it was not even possible to tell what constitutional provision the majority thought was violated by the Voting Rights Act. None of the four dissenters were the least bit concerned with deferring to the political process when they declared unconstitutional key provisions of the Bipartisan Campaign Finance Reform Act in Citizens United v. Federal Election Commission.
Why was the majority so clearly correct in Obergefell v. Hodges in declaring unconstitutional state laws prohibiting marriage equality? First, laws that prohibit same-sex marriage unquestionably treat gays and lesbians unequally and keep them from marrying. That does not resolve whether the laws are constitutional, but it does mean that undeniably there is a constitutional issue that the courts needed to resolve as to whether the state laws denied equal protection or violated due process. The dissenting Justices, and some of the critical commentators, have said that the Court’s decision was purely politics and not based on law. But all must agree that there were legal issues presented: do laws that allow opposite-sex couples, but not same-sex couples, to marry, deny the latter equal protection? Do such laws violate the right to marry, which the Court has said in prior cases constitutes a fundamental right?
The dissents, especially Chief Justice John Roberts’s, oppose protecting fundamental rights not in the text of the Constitution. But that would be a radical change in constitutional law. The Supreme Court long has protected rights that are not mentioned in the text of the Constitution, including liberties such as freedom of association, the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right to control the upbringing of one’s children, the right to purchase and use contraceptives, the right to abortion, the right to engage in private consensual adult homosexual activity, and the right to refuse medical treatment. Justice Anthony Kennedy described, at length, the many Supreme Court cases that have established aspects of the right to marry as a fundamental right.
Thus second, the question the Court had to resolve – like in all cases where people claim to be denied equal protection or assert a violation of a right – is whether the government had an adequate justification for its actions. The majority was correct in striking down the state laws prohibiting same-sex marriage because no legitimate government interest is served – let alone a compelling one, which is needed for infringement of a fundamental right — by denying gays and lesbians the right to marry.
The primary argument made by the dissents is the long tradition of marriage being between opposite-sex couples. But a tradition of discrimination is never a sufficient reason to continue to discriminate. When the Court declared unconstitutional state laws prohibiting interracial marriage in Loving v. Virginia, it rightly gave no weight to the existence of such statutes throughout American history. There must be some other reason to discriminate against gays and lesbians besides that they long have been discriminated against, especially when it concerns a right that the Court has recognized as fundamental.
The primary argument made by opponents of same-sex marriage, in the briefs and at oral argument, is that marriage primarily exists for procreation. But this argument is both false and irrelevant. It is false because no state has ever limited marriage to those who can or will procreate.
The argument is irrelevant because same-sex couples will procreate whether or not they can marry, by artificial insemination, surrogacy, and adoption. It is estimated that 200,000 children in the United States are being raised by same-sex parents. Marriage always has been thought to be good for family stability and for children. Children of same-sex couples should have these benefits as much as children of opposite-sex couples.
I have debated the issue of marriage equality countless times and I still don’t understand what government interest is served by keeping gays and lesbians from being able to express love and commitment through marriage and obtain all of the legal benefits that the government accords only to married couples. In the absence of a legitimate – let alone a compelling purpose as is necessary for infringements of a fundamental right – constitutional law commands that the Court strike the laws down as unconstitutional.
The rights of minorities, especially fundamental rights, are not left to the political process for protection. The Supreme Court performed exactly its proper role in the constitutional system when it struck down the laws prohibiting same sex marriage.
No one likely was surprised by the Court’s decision in Obergefell v. Hodges. Two years ago, in United States v. Windsor, the Court declared unconstitutional a key provision of the Defense of Marriage Act, which said that for purposes of federal law marriage had to be between a man and a woman. Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan said that Congress had no legitimate reason to refuse to recognize same-sex marriages. Virtually every lower court read Windsor as a basis for invalidating laws denying marriage equality.
But the fact that the decision was expected makes it no less important. The Court was emphatic that gays and lesbians are entitled to equal dignity and respect under the law. The Court struck down, as it did in Lawrence v. Texas, laws that were based on moral condemnation of homosexuality and made clear that such bias is not to be tolerated. Obergefell, like Lawrence v. Texas and Romer v. Evans before it, does not end all discrimination against gays and lesbians. But it is a huge step forward.
June 26, 2015 thus will be remembered, like dates such as May 17, 1954, when the Court decided Brown v. Board of Education, as the Court taking a historic step forward in advancing liberty and equality. And I have no doubt that history will regard Obergefell, like Brown, as a decision that was clearly right and that was an important advance to creating a more equal society.