The Supreme Court has found a constitutional right to same-sex marriage, striking down bans in 14 states and handing a historic victory to the gay rights movement that would have been unthinkable just 10 years ago.
Anthony Kennedy, a conservative justice who has broken with his ideological colleagues to author several decisions expanding rights for LGBT people, again sided with the court’s four liberals to strike down the state bans. The 5-4 majority ruled that preventing same-sex people from marrying violated their constitutional right to due process under the 14th Amendment and that the states were unable to put forth a compelling reason to withhold that right from people.
“It would misunderstand these men and women to say they disrespect the idea of marriage,” Kennedy wrote of same-sex couples. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.”
“They ask for equal dignity in the eyes of the law,” he continued. “The Constitution grants them that right.”
The United States is now just the 21st country in the world to allow same-sex marriage in every jurisdiction.
Chief Justice John Roberts read a stinging dissent from the bench as Kennedy sat beside him, his hand on his chin. Roberts wrote that the decision showed “disrespect” for the democratic process and that the American people should be able to decide for themselves whether they want to accept this huge social change. “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” Roberts wrote. “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.”
Roberts told same-sex couples they could “celebrate today’s decision,” even though he disagreed with it so strongly — but reminded them that they should not celebrate the U.S. Constitution.
“Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits,” he wrote. “But do not celebrate the Constitution. It had nothing to do with it.”
Despite Roberts’ harsh words, people in the courtroom were all smiles as they poured out onto the steps after the decision. Some wiped tears from their eyes.
In oral arguments last April, Kennedy expressed reservations about changing the traditional definition of marriage to include LGBT people and seemed to entertain the argument that the court should allow the American public to continue debating the relatively new concept.
“The word that keeps coming back to me in this case is millennia,” he said then, referencing the amount of time societies had considered marriage to be only between a man and a woman.
But Kennedy was swayed by the fact that hundreds of thousands of married same-sex couples already exist and that they — and their children — are being treated differently by the law when they move to a state that doesn’t recognize their union. In his majority opinion, which surely will cement his reputation as a champion for gay rights, Kennedy writes of the “urgency” of gay couples’ claims, and concludes it is wrong to allow them to be discriminated against any longer.
It’s clear the court is deeply divided over the decision. In another, even more stinging dissent, Justice Antonin Scalia wrote that he would “rather hide his head in a bag” than join the majority opinion. He mocked the first line of the opinion (“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”) as sounding like the message in a fortune cookie.