“No longer may this liberty be denied,” Justice Anthony M. Kennedy wrote for the majority in the historic decision. “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.”
Marriage is a “keystone of our social order,” Justice Kennedy said, adding that the plaintiffs in the case were seeking “equal dignity in the eyes of the law.”
The decision, which was the culmination of decades of litigation and activism, set off jubilation and tearful embraces across the country, the firstsame-sex marriages in several states, and resistance — or at least stalling — in others. It came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of the unions.
The court’s four more liberal justices joined Justice Kennedy’s majority opinion. Each member of the court’s conservative wing filed a separate dissent, in tones ranging from resigned dismay to bitter scorn.
In dissent, Chief Justice John G. Roberts Jr. said the Constitution had nothing to say on the subject of same-sex 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,” Chief Justice Roberts wrote. “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.”
In a second dissent, Justice Antonin Scalia mocked the soaring language of Justice Kennedy, who has become the nation’s most important judicial champion of gay rights.
“The opinion is couched in a style that is as pretentious as its content is egotistic,” Justice Scalia wrote of his colleague’s work. “Of course the opinion’s showy profundities are often profoundly incoherent.”
As Justice Kennedy finished announcing his opinion from the bench on Friday, several lawyers seated in the bar section of the court’s gallery wiped away tears, while others grinned and exchanged embraces.
Justice John Paul Stevens, who retired in 2010, was on hand for the decision, and many of the justices’ clerks took seats in the chamber, which was nearly full as the ruling was announced. The decision made same-sex marriage a reality in the 13 states that had continued to ban it.
Outside the Supreme Court, the police allowed hundreds of people waving rainbow flags and holding signs to advance onto the court plaza as those present for the decision streamed down the steps. “Love has won,” the crowd chanted as courtroom witnesses threw up their arms in victory.
In remarks in the Rose Garden, President Obama welcomed the decision, saying it “affirms what millions of Americans already believe in their hearts.”
“Today,” he said, “we can say, in no uncertain terms, that we have made our union a little more perfect.”
Justice Kennedy was the author of all three of the Supreme Court’s previous gay rights landmarks. The latest decision came exactly two years after his majority opinion in United States v. Windsor, which struck down a federal law denying benefits to married same-sex couples, and exactly 12 years after his majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.
In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.
“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “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.”
This drew a withering response from Justice Scalia, a proponent of reading the Constitution according to the original understanding of those who adopted it. His dissent was joined by Justice Clarence Thomas.
“They have discovered in the Fourteenth Amendment,” Justice Scalia wrote of the majority, “a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
“These justices know,” Justice Scalia said, “that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry.”
Justice Kennedy rooted the ruling in a fundamental right to marriage. Of special importance to couples, he said, is raising children.
“Without the recognition, stability and predictability marriage offers,” he wrote, “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.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.
In dissent, Chief Justice Roberts said the majority opinion was “an act of will, not legal judgment.”
“The court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs,” he wrote. “Just who do we think we are?”
– via New York Times