U.S. Supreme Court

Gay marriage is a constitutional right, Supreme Court rules

  • Print.


Image from Shutterstock.

The U.S. Supreme Court has ruled 5-4 that same-sex marriage is a right protected by the Constitution.

Gay couples’ fundamental right to marry is protected by the due process and equal protection clauses of the 14th Amendment, Justice Anthony M. Kennedy wrote in the majority opinion (PDF). Denying the right to marry to same-sex couples “works a grave and continuing harm,” he said.

“It demeans gays and lesbians for the state to lock them out of a central institution of the nation’s society,” Kennedy wrote. “Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”

Kennedy said marriage “is a keystone of our social order” and the personal choice to marry is “inherent in the concept of individual autonomy.” His opinion was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Kennedy’s opinion noted that marriage has evolved over time. It was once viewed as an arrangement by a couple’s parents, then as a joining of two persons into a “male-dominated legal entity,” a principle that was later abandoned, he said.

“These new insights have strengthened, not weakened, the institution of marriage,” Kennedy wrote. “Indeed, changed understandings of marriage are characteristic of a nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”

The same dynamic has occurred in the nation’s experiences with the rights of gays and lesbians, Kennedy said, referring to his own opinions striking down a criminal ban on homosexual sodomy, overturning a state effort to bar local protections for gays, and invalidating a federal law barring federal benefits for married gay couples.

“The nature of injustice is that we may not always see it in our own times,” Kennedy said. “The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning.”

Above the Law notes that two of Kennedy’s prior gay-rights decisions were issued on June 26, the same date of today’s decision finding a constitutional right for gays to marry. The date could become “Justice Anthony Kennedy Day for the LGBT community,” the blog said.

Chief Justice John G. Roberts Jr. read his principal dissent from the bench, the first time he has done so, SCOTUSblog says. Roberts said the arguments on behalf of gay marriage have “undeniable appeal” but the Constitution does not compel states to permit such marriages. “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 wrote.

Roberts asserts that much of the court’s reasoning “would apply with equal force to the claim of a fundamental right to plural marriage.”

“If you are among the many Americans–of whatever sexual orientation–who favor expanding same-sex marriage, by all means celebrate today’s decision,” Roberts said. “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. But do not celebrate the Constitution. It had nothing to do with it.”

Each of the four dissenters wrote separately. Roberts’ dissent was joined by Justices Antonin Scalia and Clarence Thomas. Scalia and Thomas joined each other’s dissents. Justice Samuel A. Alito’s dissent was joined by Scalia and Thomas.

Scalia said he was writing separately “to call attention to this court’s threat to American democracy.” He criticized the majority opinion as “lacking even a thin veneer of law” and said it is filled with “mummeries and straining-to-be-memorable passages.”

“What really astounds is the hubris reflected in today’s judicial Putsch,” Scalia said.

ABA President William C. Hubbard praised today’s decision in a statement. “The American Bar Association welcomes today’s U.S. Supreme Court decision,” he said, noting that ABA policies adopted since 1973 have advocated against sexual orientation discrimination; that the ABA adopted a policy in 2010 advocating the elimination of laws banning same-sex marriage; and that the ABA filed an amicus brief in support of the petitioners in this case.

“The court’s decision means that now, children of same-sex couples will have the security that legal marriage provides,” Hubbard said. “Recognizing the dignity and equality of same-sex couples is consistent with the fundamental principles that undergird the rule of law: fairness, equality and liberty.”

The case is Obergefell v. Hodges.

Related articles:

ABAJournal.com: “Chemerinsky: Facing history, SCOTUS is likely to approve same-sex marriages”

ABA Journal: “SCOTUS to review a handful of cases on the rights of same-sex couples”

Updated at 3:06 p.m. to add Hubbard’s statement.

Give us feedback, share a story tip or update, or report an error.