June 26, 2015

By just a single vote, a bitterly split United States Supreme Court today ruled the U.S. constitution grants same sex couples “equal dignity in the eyes of the law.” Both the majority ruling affirming the right of same-sex citizens to marry, and the dissenting opinions, blaze with fiery passion, angst and literary fervour.

In essence, the ruling answered “yes” to two questions: whether the constitution requires a State to license a marriage between two people of the same sex, and whether it requires a State to recognize a same- sex marriage licensed and performed in a State which does grant that right.

The petitioners, Obergefell v Hodges and consolidated cases, include 14 same-sex couples, plus two men with deceased partners.

All previously, successfully, challenged legislation in their home states defining marriage as a union between one man and one woman, and banning recognition of same-sex marriages in other states where they are legal.

The petitioners were joined as a group in one case, before the United States Court of Appeals for the Sixth Circuit. That court reversed those lower court decisions. It ruled a State has no constitutional obligation to license same-sex marriages, or to recognize same-sex marriages elsewhere.

The appeal of that decision was heard by the Supreme Court on April 28. Today’s ruling means the petitioners, and all Americans, join 18 other countries with legal same sex marriage; legalization is on the books and pending in three other nations.

The situations of the petitioners are not unique, noted the court. “For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines,” wrote Associate Justice Anthony M. Kennedy for the majority.”In light of the fact that many States already allow same-sex marriage — and hundreds of thousands of these marriages already have occurred — the disruption caused by the recognition bans is significant and ever-growing.”

The cases of the petitioners were, however, uniquely compelling. They include:

  • James Obergefell met John Arthur over two decades ago, and lived in Ohio. Wrote Kennedy: “They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems “hurtful for the rest of time.”He brought suit to be shown as the surviving spouse on Arthur’s death certificate.”
  • April DeBoer and Jayne Rowse, nurses in Michigan who celebrated a commitment ceremony in 2007, adopted three children, including a premature baby abandoned by his biological mother and a baby girl with special needs. Because Michigan permits only opposite-sex married couples or single individuals to adopt, each child could have only one legal parent. Noted Kennedy’s ruling: “If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt.”
  • Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura married in 2011 in New York, before DeKoe deployed to Afghanistan for one year. Noted Kennedy: “When he returned, the two settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden. “

Myths and Legends

The ruling and dissenting opinions, like much of America, seem larger than life: falling short only of fire and brimstone, the writing of the justices evokes both legal precedents and the authority of figures from Confucius and Cicero to  John Locke and John Stuart Mill; from William Faulkner to Alexis de Tocqueville.

Arguments in the landmark case pivot on the mythological undercurrents in America: liberty, the rule of law over the rule of man, individual rights, elites versus the common man, and with a nod to America’s raging culture wars, “activist courts.” There was little about religion in the judgement — though outside the court, religious belief dominates the issue, with believers on both sides.

Kennedy wrote that “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.” He wrote:

“From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government … This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.”” …  There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.

That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held — and continues to be held — in good faith by reasonable and sincere people here and through- out the world.

The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”

“For those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening,” responded John G. Roberts, Chief Justice, in a dissent alternatively dripping with scorn and seeming to exude despair; at one point he even invoked William Faulkner’s Requiem for a Nun: “The past is never dead. It’s not even past.”

Wrote Roberts:

“Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description— and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thought- ful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. …. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies.“

In a scathing critique of judicial elites, dissenter Antonin Scalia, Associate Justice, wrote: “the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South- westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination.” Scalia added:

“When decisions are reached through democratic means, some people will inevitably be disappointed with the re- sults. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again … That is exactly how our system of government is supposed to work … But today the Court puts a stop to all that.”

The document is worthy of the time required to read it in full, here:

Meantime, more selected excerpts are below.

Kennedy on social order:

Marriage is a keystone of the Nation’s social order…   Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago: “There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of pub- lic life to the bosom of his family, he finds in it the im- age of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs.”…

States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable.

Kennedy on the right time to recognize same-sex marriages:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understand- ing of how constitutional imperatives define a liberty that remains urgent in our own era. … There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. … Yet there has been far more deliberation than this argument acknowledges.

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But  … when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decision making ….”

Kennedy on individual autonomy:

Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.  Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.”   … Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

Kennedy on the children of same-sex couples:

Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.  … That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State.

Justice Antonin Scalia, in dissent:

“The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so…  Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.”

Chief Justice Roberts, in dissent:

….this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”

… the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s ap- proach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex mar- riage, making a dramatic social change that much more difficult to accept.

Justice Clarence Thomas, in dissent:

“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. “

Samuel Alito, in dissent:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.  It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. … The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Few reactions to the ruling matched the court in eloquence — though passion was in abundance. Advocates and activists celebrated. Pop media thrilled with stories about Rick Scarborough (Google search), a religious Texan who promised to “burn” if same sex marriage were law of the land. At the time of this writing, there was no indication that he’d set himself alight. Louisiana’s attorney general called the ruling an “intrusion into .. a state issue,” and denied the order was immediately effective. One Alabama judge noted he already had stopped issuing marriage licences — to anyone. (Politico)

Eighteen other countries already regard same sex marriages as legal; in most of them, it’s almost a humdrum administrative matter. Weeks before the American ruling, Irish citizens voted to legalize same sex marriage in Ireland. But in keeping with America’s larger-than-life reputation, it is the American judgement that is making global news this week. And on Friday evening, the White House lit up in the colours of the rainbow.

Copyright © xxxX Deborah Jones

Originally published in Facts and Opinions, June 26, 2015

References and further information:

Obergefell v Hodges and consolidated cases,United States Supreme Court ruling, PDF:

Wikipedia page on Same Sex Marriage:

New York Times report on the ruling:

A Profound Ruling Delivers Justice on Gay Marriage, New York Times editorial:

 Same-sex marriages still on hold in Louisiana, Mississippi, Politico:

In a statement entitled “God Defined Marriage,” the National Association of Evangelicals said, “”Nothing in the Supreme Court’s Obergefell v. Hodges opinion changes the truth about marriage. What has changed is the legal definition of marriage, which is now at variance with orthodox biblical faith:“

“What the Court can make legal, they cannot make moral,” said George O. Wood of the Assemblies of God, in a story on the organiztion’s site entitled “Supreme Confusion.”:

U.S. President Barack Obama on the Supreme Court ruling:


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