The United States Supreme Court’s decision in Obergefell v. Hodges establishing nationwide marriage equality will likely go down in history as one of the Court’s great landmark rulings. The Court’s opinion not only embraces liberty and marriage equality for LGBTQ Americans but reaffirms the fundamental principles of American constitutional democracy. Although the opinion often uses terms such as “gays and lesbians” or “same-sex” couples and discusses sexual orientation, the Court’s holding brings marriage equality to all LGBTQ people and significantly advances the goals of freedom and equality in all aspects of our lives.
The opinion begins by articulating the core American value of personal freedom: “The Constitution promises liberty to all within its reach, a liberty … to define and express their identity.” The Court then explained how the Constitution is not shipwrecked in the 18th century but lives today to protect Americans’ freedom and equality. In the Court’s words: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
The Court implicitly recognized the importance of decades of LGBTQ activism in creating change, explaining that “new dimensions of freedom become apparent to new genera¬tions, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”
The Court then held that laws that exclude LGBTQ couples from marriage “burden the liberty of same-sex couples, and … abridge central precepts of equality.” Such laws “are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exer¬cising a fundamental right.”
The Court affirmed that two people “whatever their sexual orientation” may form an “enduring bond” in marriage and that can lead to greater “expression, intimacy, and spirituality.” Further, “gays and lesbians can create loving, supportive families,” and indeed “hundreds of thousands of chil¬dren are presently being raised by [same-sex] couples” in “loving and nurturing homes ….” Put simply, the Court stated, “[t]here is no difference between same- and opposite-sex couples with respect to” these core matters. Yet same-sex marriage bans undermine the dignity of LGBTQ families, “harm and humiliate the children of same-sex couples,” and “consign” same-sex couples “to an instability many opposite-sex couples would deem intolerable in their own lives.”
In explaining its decision, the Court emphasized the horrible isolation that LGBTQ Americans have had to endure historically. In the Court’s words, for long “[a] truthful declaration by same-sex couples of what was in their hearts had to remain unspoken,” and for years“[s]ame-sex intimacy” was criminal in many states. The opinion refers to how historically many LGBTQ people had been “con¬demned to live in loneliness, excluded from one of civiliza¬tion’s oldest institutions,” marriage. The Court further noted that “[g]ays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.”
The Court spoke of the destructive nature of such prejudice and discrimination. “Especially against a long history of disapproval of [same-sex] relationships, [the] denial … of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.“
The tone of the opinion is strikingly vivid, emotionally intelligent, and personal. We and many others have experienced a profound sense of dignity and pride at no longer being second-class citizens when it comes to marriage, but the Court also acknowledged how painful and lasting the human toll of disparagement and isolation is. In the Court’s words, “wounds [to our human dignity] cannot always be healed with the stroke of a pen.” In describing the limited benefit of incremental victories, such as decriminalization of same-sex love, the Court observed: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”
The opinion will significantly bolster future cases challenging sexual orientation discrimination because the Court recognized the harmful effect of inequality on all lesbian and gay people, not just those in relationships. The Court held that the “exclusion” from marriage “has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.” Denying LGBTQ people the right to marry “disparage[s] their choices and diminish[es] their personhood ….”
In its opinion, the Court also recognized explicitly for the first time that homosexual orientation is healthy and unalterable, observing how “psychiatrists and others [have now] recognized that sexual orientation is both a normal expression of human sexuality and immutable.” Although long obvious to millions of Americans and to every professional psychological or medical association, the Court’s recognition of these facts is very important to assuring success in future cases challenging unequal treatment based on sexual orientation.
The Court’s opinion essentially recognized the crime of Proposition 8 and all the other statewide measures that targeted LGBTQ Americans to deprive of them of marriage equality and their basic human dignity. The Court did so by reasserting the central role of the Bill of Rights in our constitutional democracy. The opinion reassures all Americans that “[t]he Nation’s courts are open to in¬jured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” In the words of the Court, “[t]he idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials ….’ This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’”
We could say many other things about the importance of this historic decision, but for now we conclude with the last two lines of the opinion itself. By seeking marriage equality, LGBTQ people “ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
John Lewis is an attorney and is the MEUSA Legal & Policy Director. John and his husband Stuart Gaffney were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008.
Read the Amicus Brief, authored by John Lewis, MEUSA submitted for the Obergefell case.
We are thrilled with the June 26 marriage opinion from U.S. Supreme Court!
We will host a national SCOTUS Ruling Community Call on Tuesday evening, 30 June 2015 to discuss the ruling and what it means. Your questions are welcomed!
Participants on the call will be: Kathleen Perrin, Director, Equality Case Files; David Cruz, Professor of Constitutional Law, University of Southern California School of Law; and host John Lewis, Director of Legal and Policy, Marriage Equality USA. The call will be moderated by Brian Silva, Executive Director of Marriage Equality USA.
As the day draws near for the Supreme Court to issue its decision in the marriage equality cases, the urge to decipher any clue as to what the Court will decide heightens. A few weeks ago, the New York Times reported that as Justice Ruth Bader Ginsburg recently pronounced two gay men married “by the powers vested in her by the Constitution” at a swank D.C. wedding, she did it “[w]ith a sly look and special emphasis on the word ’Constitution.’” The newspaper also reported that the wedding guests’ wildly enthusiastic response seemed to have “delighted” the Justice. The New York Times’ speculation that Ginsburg’s intonation and reaction may be a “hint” of what the Supreme Court will decide set the news world abuzz.
The things the Justices said during the Supreme Court’s late April oral argument in the marriage equality cases have also been ripe for speculation. Several of the Justices upon whom we are relying asked questions or made statements that most observers have interpreted as favorable to marriage equality. For instance, Justice Kagan seemed to indicate that she believed the current cases were “exactly what” the Supreme Court’s landmark decision, Loving v. Virginia, that struck down all state bans on interracial couples marrying, was about. In Loving, the Court held that such marriage exclusions violate Americans’ fundamental right to marry and the guarantees of equality that the U.S. Constitution provides. Justice Kagan described how Loving showed that “liberty and … equality are intertwined ….”
Justice Breyer also observed that “marriage is about as basic a right as there is” and that the Constitution prohibits a state from “depriv[ing] a person of … basic liberty, without due process of law ….” He questioned opponents’ counsel as to same-sex couples’ argument that they have “no possibility to participate in that fundamental liberty” in states without the freedom to marry. Breyer further stated that opponents’ argument that upholding tradition justified states’ same-sex marriage exclusions was “the same way we talk[ed] about racial segregation” during the era of Loving. Justice Sotomayor seemed to agree, apparently rejecting opponents’ argument that LGBT Americans somehow seek a Constitutional right to “gay” marriage and understanding that same-sex couples simply assert their fundamental right to marry that the Constitution guarantees everyone else.
Justice Ginsburg said favorable things as well. She recognized how the evolution of marriage under the law from “a relationship of a dominant male to a subordinate female” to an “egalitarian” institution made it something that same-sex couples would seek to participate in. She also seemed to reject opponents’ argument that same-sex couples’ marrying would somehow harm heterosexuals’ marriages, noting that the freedom to marry for same-sex couples would not “tak[e] away anything from heterosexual couples.” Justice Kagan appeared skeptical of similar arguments from opponents, noting that some people find it “hard to see how permitting same-sex marriage discourages people from being bonded with their biological children." Justice Breyer asked opponents’ attorney for “empirical” evidence of such a connection, none of which was availing. Soon thereafter, Justice Kagan told opponents’ counsel that he found his reasoning “inexplicable.”
Much attention focuses on Justice Kennedy, who is considered the “swing” vote on the Court in many cases and has written all three of the Court’s landmark LGBT rights cases. Kennedy said relatively little during the argument but asked questions and made statements that observers have interpreted as favorable to both sides. LGBT supporters were disturbed when early on he gave voice to the argument that a purported “definition” of marriage had been “with us for millennia” and that “it's very difficult for the court to say 'Oh well, we know better.'" Justice Breyer also wanted an answer to questions about the issue.
However, Justice Kennedy also stated that he thought “the whole purpose of marriage” was to bestow dignity on the couple and that same-sex couples seek the same “ennoblement” that other married couples have. In questioning opponents’ counsel, Kennedy recognized same-sex couples’ argument that they seek marriage “in order to show that we, too, have a dignity that can be fulfilled.” Kennedy also noted that approximately the same amount of time has elapsed between the Supreme Court’s landmark LGBT rights decision in Lawrence and the current cases as had elapsed between Brown v. Board of Education and Loving, two of the Court’s landmark race discrimination cases.
Justice Kennedy’s references to the importance of the dignity that marriage confers are heartening. Dignity was central to Justice Kennedy’s opinion in United States v. Windsor, striking down section 3 of DOMA. He emphasized that the State of New York’s decision to end the exclusion of same-sex couples from marriage reflected the state’s decision to “protect” same-sex couples “in personhood and dignity.” Justice Kennedy wrote that “essence” of DOMA was “interference with the equal dignity of same-sex marriages” and that the “injury and indignity” that DOMA inflicted on married same-sex couples was “a deprivation of an essential part of the liberty protected” by the Constitution. He stated that DOMA “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” thereby “plac[ing] same-sex couples in an unstable position of being in a second-tier marriage.”
Justice Kennedy asked questions that appeared favorable to both sides during oral argument in the marriage cases two years ago, but the ultimate result of Windsor was unambiguous, and some of the language stronger than most observers anticipated. No one can predict the outcome of any Supreme Court case with surety based on oral argument or other comments Justices might otherwise make. The actual motivations for Justices’ questions are unknowable in advance. Justices may want to probe an argument fully by making statements and asking difficult questions to both sides. Further, Justices may be poised to ask particular questions, but before they speak their colleague might ask the very same thing, or the time allotted to the argument may expire.
Anticipation will continue to build as we approach the end of June, when the Justices will likely render their decision. We know that if justice prevails, marriage equality will be the law of the land and the U.S. Supreme Court will recognize that LGBT Americans deserve full equal protection under the law in our lives.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. John is the MEUSA Director of Legal & Policy; Stuart is the MEUSA Communications Director.