Court’s Marriage Ruling Addresses State, Religious Views it Overrides

Posted June 26, 2015 at 1:06pm

The Supreme Court’s ruling Friday that same-sex couples have the fundamental right to marry, a landmark civil rights ruling that has sweeping implications for American society.

In an historic 5-4 ruling, the majority sought to address the issues of religious belief and state regulation of marriage that accompanied the debate before and after the decision. The ruling puts some state politicians in the position of implementing what their constituents strongly oppose.

The decision ends the state-by-state patchwork of legality where it comes to same-sex weddings and which states recognize such unions. It represents the final summit for gay rights advocates who pressed for the issue through the federal courts—and traversed the system with surprising quickness.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” Justice Anthony M. Kennedy wrote for the majority. Same-sex couples who challenged state bans on their unions “hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

He added: “They ask for equal dignity in the eyes of the law. The constitution grants them that right.”


Resistance Remains

States may nevertheless look for ways to resist. Texas Attorney General Ken Paxton, for example, told county clerks and justices ahead of the ruling to “wait for direction and clarity from this office about the meaning of the Court’s opinion and the rights of Texans under the law.”

Among the ruling’s profound implications are financial and medical ones that derive from the legal status of a spouse as well as religious ones that may arise from conflict between the legality of same-sex marriage and the religious freedom of those who refuse to recognize it. Government policy has already moved to give same-sex couples parity in areas such as hospital visitation.

Justice Kennedy’s opinion referred to marriage’s position as a keystone of the social order. “There is no difference between same- and opposite-sex couples with respect to that principle,” Kennedy wrote. “Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the states have linked to marriage.”

“Same sex-couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives,” Kennedy wrote.

The decision also shifts debate back to Congress, which has still not repealed the Defense of Marriage Act (DOMA) defining marriage as between one man and one woman. That law is defunct after a 2013 Supreme Court decision.

Opponents have said legalizing same-sex marriage in every state would spark a battle over lesbian, gay, bisexual and transgender civil rights in Congress and state legislatures, similar to the long-boiling reaction to the high court’s landmark 1973 decision on a woman’s right to an abortion.

The Supreme Court’s ruling outcome was not a surprise, and accompanies a rapid cultural shift toward acceptance of same-sex marriage. It comes on the anniversary—June 26—of two other historic Supreme Court gay rights decisions: a 6-3 decision in 2003 striking down criminal sodomy laws, and a 5-4 decision in the DOMA case.

But Mississippi Gov. Phil Bryant, whose state bans same-sex marriage, noted that the cultural shift hasn’t persuaded everyone. The court’s ruling “is out of step” with most citizens in his state, Bryant said in a statement, adding that states have historically had the authority to “regulate marriage within their borders.”

Kennedy addressed the issue of waiting for states to act.

“The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right,” he said. “It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the court here is the legal question whether the constitution protects the right of same-sex couples to marry.”

The high court’s ruling was enough to persuade some who had opposed it.

State officials in Nebraska, South Dakota, Georgia, Ohio and Michigan said they would follow the law.

President Barack Obama, speaking outside the White House for the second straight day to welcome a Supreme Court decision, said the ruling is “a victory for gay and lesbian couples that have fought for so long.” Praising the “persistent effort of dedicated citizens” who sought legal recognition of same-sex marriage, Obama said the “decision affirms what millions of Americans already believe.”

But Obama also acknowledged the opposition to the ruling. “All of us who welcome today’s news should recognize that fact.”

The ruling also sought to address those concerns, emphasizing that religions may continue to advocate “with the utmost, sincere conviction” that 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,” Kennedy wrote.

Kennedy’s authorship of the same-sex marriage opinion was not a surprise. He wrote those previous gay rights opinions and gets credit from advocates for playing a critical role in advancing LGBT rights in America.

Kennedy clearly had a sense of history as he wrote the opinion. Joining him in the majority was Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Chief Justice John G. Roberts and three other conservative justices dissented, writing that states and voters should decide how to define marriage and cautioned what consequences such a ruling might bring. Joining Roberts in dissents were and justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

Roberts wrote that the policy arguments for extending marriage to same-sex couples may be compelling, but the legal arguments for requiring such an extension are not.

“This court is not a legislature,” Roberts wrote. “Whether same-sex marriage is a good idea should be of no concern to us.”

“Many people will rejoice at this decision, and I begrudge none their celebration,” Roberts wrote. “But for those who believe in a government of laws, not of men, the majority’s approach is disheartening.”

The vast majority of lower federal courts had sided with gay rights advocates challenging state bans based on the court’s 2013 decision on DOMA. The Supreme Court justices themselves had tipped their hand with decisions to let those lower court rulings stand — moves that since October allowed the number of states with same-sex marriage to nearly double to 37, plus Washington, D.C.

The Supreme Court agreed in January to decide cases challenging state marriage laws from Kentucky, Michigan, Tennessee and Ohio. The cases cover a variety of life situations for LGBT couples such as raising children and hospital visitations. Oral arguments were in April, less than two years after the court ruled on same-sex marriage in the DOMA case.

The named plaintiff in the cases decided Friday is Ohio resident James Obergefell, who represents one of four couples who challenged Ohio’s same-sex marriage laws put in place by state lawmakers and the voters in 2004.

Ohio denied him a death certificate that acknowledged his marriage to his partner of two decades, John Arthur, who was diagnosed in 2011 with terminal ALS. Obergefell stood by his side and cared for Arthur through his illness, and the couple flew to Maryland to be wed before Arthur’s death. Were Obergefell’s partner a woman, it would have been routine for Ohio to list Arthur as a deceased spouse, the petition said.

Both sides of the cases encouraged the Supreme Court to review the issue and settle it.

Kennedy’s reasoning for the decision under the Fourteenth Amendment guarantee of equal protection also cited the right to personal choice regarding marriage, saying it is inherent in the concept of individual autonomy—and was why the Supreme Court invalidated interracial marriage bans in 1967.

Marriage is fundamental because it supports a two-person union unlike any other, Kennedy’s wrote. It safeguards children and families and draws meaning from child-rearing, procreation and education for same-sex couples. “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser,” Kennedy wrote.

The consolidated cases are: Obergefell et al v Hodges et al; Tanco et al v Haslam et al; DeBoer et al v. Snyder et al; and Bourke et al v Beshear et al.