Disclosure: No surprise to readers of New York Court Watcher or anyone who knows me, I am extremely pleased that the Supreme Court has recognized the equal right of same-sex couples to marry. My personal opinion aside, here's an unadorned outline of the Court's decision and the dissenting opinions.As readers of this....No, as readers and listeners of the news around the world now know, the United States Supreme Court ruled that same-sex couples have the same right to marry as do opposite-sex couples. The Justices released their decision near the end of the term, along with several other blockbusters. (See e.g., posts on Wrap Ups, Supremely Polarized, Obamacare Subsidies, Confederate Flag, Lethal Injection.)
The dust is now settling--at least the bare fact of the decision is sinking in to both ecstatic supporters and enraged opponents. There's been an awful lot of commentary. Emphasis on awful. But some that is thoughtful and even wise.
There will be no attempt here at being thoughtful or wise--or awful. Just some straightforward distillation of the actual constitutional arguments made by the majority, and those offered in the several dissenting opinions.
[We will examine some of the awful commentary and analysis in a later post.]
Here's the recap of Obergefell v. Hodges:
- Same-sex couples are constitutionally entitled to the same right to marry as are opposite sex couples.
- The vote was 5 to 4.
- Majority: Justice Kennedy, joined by Ginsburg, Breyer, Sotomayor, and Kagan [I.e., Kennedy + the 4 liberals]
- Dissent: separate opinions by Chief Justice Roberts, and Justices Scalia, Thomas, and Alito [I.e., by each of the Court's 4 more conservative Justices--1) Roberts's opinion was joined by Scalia and Thomas; 2) Scalia's opinion was joined by Thomas; 3) Thomas's opinion was joined by Scalia; 4) Alito's opinion was joined by Scalia and Thomas]
- [Procedurally, the decision reversed the decision of a federal appeals court (the 6th Circuit) that sustained "one man-one woman" laws in Kentucky, Michigan, Ohio, and Tennessee. The other federal appeals courts around the country to address the issue had all held such laws to be unconstitutional.]
- Marriage is an institution of transcendent importance, and the right to marry has long been constitutionally protected by the Court.
- The legal status of gays and lesbians, previously viewed as immoral and ill, has shifted greatly since the late 20th century.
- This Court has previously invalidated laws that discriminated against gays and lesbians--e.g., laws that denied them the right to claim discrimination, that made same-sex intimacy a crime, and that denied federal benefits to legally married same-sex couples.
- The "liberty" protected by the 14th Amendment [The provision in the Constitution that guarantees protection against infringement by state governments.] has been interpreted by this Court to include most of the rights listed in the Bill of Rights, as well as other fundamental liberties of "individual dignity and autonomy," such as the rights to privacy, to childrearing, to procreation, and to marry.
- The issue in this case is not whether there is a right to same-sex marriage, but whether there is "sufficient justification for excluding" same-sex couples from the fundamental right to marry.
- The exclusion demeans and stigmatizes same-sex couples.
- It does this even though there is no difference between same- and opposite-sex couples when it comes to the fundamental right to marry and to the many government rights, benefits, and responsibilities tied to a valid marriage.
- Laws against same-sex marriage not only violate the fundamental right to marry, but also the equal protection of the laws.
- As with the laws prohibiting inter-racial marriage, which this Court held to be unconstitutional in Loving v. Virginia (1967), the laws prohibiting same-sex marriage are unjustified, unsupportable, and incompatible with the requirements of equality.
- Individuals denied fundamental rights need not wait for legislative action to be protected.
- There are strong arguments in social policy and fairness for allowing same-sex couples to marry.
- While the policy arguments may be compelling, the legal arguments are not.
- A state's choice to retain the meaning of marriage that has persisted throughout history and across cultures cannot be called irrational.
- The right to marry does not include the right to change that meaning.
- The Court ought not to impose its will upon the states and shortchange the democratic process.
- A more modest and restrained view of this Court's role would be more skeptical of its moral insights and more sensitive to its unelected status.
- If you favor expanding same-sex marriage, "by all means celebrate today's decision...Celebrate the opportunity for a new expression of commitment to a partner."
- "But do not celebrate the Constitution. It had nothing to do with it"
- I don't have strong personal feelings about the substance of today's "decree" or what the law says about marriage.
- But I do care about "who it is that rules me."
- Today's decision is the furthest extension of the Court's "naked judicial claim" to create "liberties."
- That claim is fundamentally contrary to our system of democracy in which the People, the States are free to adopt laws, even if they offend the "reasoned judgment" of the Justices.
- The opinion--"judicial Putsch"--of the majority reflects "hubris," and is "pretentious," "egotistic," and "profoundly incoherent."
- The majority recognizes a "liberty" in the Constitution that the Framers would not recognize.
- The decision is detrimental to the liberty that the Framers did seek to protect.
- The decision distorts the text of the Constitution and inverts the constitutional relationship between individual and government.
- In light of history, the term "liberty" in the Constitution refers to "the power of loco-motion...without imprisonment or restraint"--to nothing "broader than freedom from physical restraint."
- The American people have been engaged in a debate about same-sex marriage.
- The federal courts have now put an end to that.
- "The Constitution says nothing about a right to same-sex marriage."
- Some states worry that abandoning the traditional understanding of marriage will lead to marriage's further decay.
- It is beyond this Court's authority to say that a state may not adhere to that view.
Well there it is.
To be sure, I've had to restrain myself from commenting while outlining the various opinions.
But I have tried to present a fair representation of the majority's and various dissenters' arguments.
And I have tried to do so without including or excluding too much or too little, hoping to capture the essentials.
Anyone interested in reading the entire decision, here is the link to Obergefell v. Hodges on the Supreme Court's website.
In the next New York Court Watcher post on the Supreme Court, I'll address some of the awful commentary I alluded to above. There may well be legitimate arguments, both pro and con, about the legal issue of same-sex marriage--and about the role of the Supreme Court. But much of what has been and will undoubtedly continue to be spouted is nonsense. We'll examine some of those arguments.
Additionally, we'll return our attention to the New York Court of Appeals--some important decisional and personnel developments.
AND, it's 2 1/2 weeks till the Saratoga meet opens. For psychological and emotional preparation, we need to recall some of last year's highlights. (If you can't wait for a Saratoga fix, here's a link to a previous year's highlights.)