On the 12th anniversary of its decision that laws penalizing gay sex are unconstitutional, and two years to the day after it gutted the federal Defense of Marriage Act, the Supreme Court has ruled that gay couples nationwide have a constitutional right to marriage. The decision bucked the trend of saving the biggest case for the very end of the term, scheduled for Monday, and was led by longtime gay-rights advocate Justice Anthony Kennedy. It has rightly touched off a moment of national jubilation as the marriage-equality movement sees decades of work pay off. But the decision has also left at least one huge question about the legal status of gay Americans unanswered — meaning that the equal-rights struggle is not quite behind us.
At only 28 pages, the ruling in Obergefell v. Hodges was straightforward but monumental, with a majority of the court concluding that, under the Constitution, “same-sex couples may exercise the fundamental right to marry in all States.” And from that holding, the court also ruled that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”
In other words, the gay couples hailing from Ohio, Tennessee, Michigan, and Kentucky got all that they petitioned the court to do: a right to marriage and a right to recognition of marriages performed in states that permit them.
Kennedy’s conclusion is as grand as anything he’s written on the rights of gays and lesbians — now four decisions in all — and is worth quoting in full:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The language bears all the hallmarks of the conservative “center” of the court, beginning with the recognition that the Constitution affords liberty to all, “a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”
Kennedy traces the history of marriage through the centuries, its status as a “timeless institution,” and its very corruption — not by gays and lesbians, but by societal changes that history has shown are no longer workable and have forced marriage to evolve, such as arranged nuptials and laws that treated women as property. Kennedy placed same-sex marriage along that continuum, noting the “years of litigation, legislation, referenda, and the discussions” that have led to this moment — a time of division among the states that requires a constitutional rule settling the question.
For that, he looked at the Court’s iconic marriage precedents — including Loving v. Virginia, which ended prohibitions on interracial marriage — and then moved on to other “constitutional principles of broader reach.” These are the cases that do not hit on marriage squarely, but otherwise “identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond.” In the aggregate, the weight of this evidence, Kennedy concluded, “compels the conclusion that same-sex couples may exercise the right to marry.”
He continued: “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”
This fundamental right to “dignity” is something Kennedy has long supported — it is also evident in his views on the death penalty and the treatment of youth in the criminal-justice system. And though it gave same-sex couples what they wanted, it left a big gaping hole in an area of the law that still remains unresolved: Whether the Constitution owes LGBT folks protected legal status. That is, whether the same kind of protection the Fourteenth Amendment affords racial minorities and women can be extended to gays and lesbians. This omission matters because it means states may still find other means — such as the spate of recent “religious liberty” bills — that disenfranchise wide swaths of the population based on their sexual orientation.
The dissenting justices had bold words of their own. The same four who opposed striking DOMA in 2013 also objected here, and each wrote separate, strongly worded opinions expressing their displeasure — but oddly didn’t manage a united front. Not one of them got the three others to join him in full. And by their combined verbiage, you’d think the Constitution is about to go up in flames.
Chief among them was Chief Justice John Roberts, who just came off a victory lap with King v. Burwell and was rumored to possibly vote with the majority in Obergefell — based on the uncontroversial view that denying gay couples the right to marry amounts to “sex discrimination.” He did no such thing. Instead, he basically encouraged everyone to revel during Pride Weekend but not much else:
If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. 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.
Meanwhile, Justice Antonin Scalia, who has stood opposite Kennedy on every major gay-rights ruling, had a dire warning for the country, noting that the Supreme Court’s move was “not of immense personal importance to me,” yet otherwise was — get this — a “threat to American democracy” because it did things found nowhere in the Constitution’s text:
The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
In a similar vein, Justice Samuel Alito lamented that the Court’s course “evidences the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation,” while Justice Clarence Thomas echoed that the “decision will have inestimable consequences for the Constitution and our society.” Particularly, that it’s the people of each of the 50 states — and not gay people seeking a right to marry —who get to redefine the traditional meaning of marriage.
This battle between individual liberties and states’ rights — between the Union and same-sex unions — is as old as the Constitution itself, and Obergefell won’t end it. But to hear Scalia and his peers tell it, there’s a sense that it would be perfectly fine to let state electorates debate the issue of gay marriage one by one, no matter if it takes another 100 years to reach a nationwide consensus.
That’s no consolation for gay couples who seek the same treatment everyone else gets — at least when it comes to marriage. As Kennedy himself once announced in an old case, “Liberty finds no refuge in a jurisprudence of doubt.” Beginning today, that uncertainty is at once removed by the Supreme Court’s declaration that same-sex couples have a right to marry.
