Breaking: Supreme Court declares right to same-sex marriage

In a 5-4 ruling, the Supreme Court has held that the 14th Amendment right to equal protection requires states to allow marriage for same-sex couples. The opinion, written by Justice Anthony Kennedy, will strike down any state restrictions for traditional marriage, including those adopted as state-constitution amendments:


The Supreme Court in an historic 5-4 ruling on Friday said there is a right to same-sex marriage in all 50 states, delivering a monumental win for gay and lesbian couples across the country.

Justice Anthony Kennedy, often the swing vote on the court, sided with its more liberal members and authored the decision. …

In the case, known as Obergefell v. Hodges, the court was faced with answering two questions – whether states are required to license a marriage between two people of the same sex and whether states have to recognize same-sex marriage licenses from other states under the 14th Amendment.

That second question is moot after the ruling legalizing same-sex marriage.

The opinion is here, via SCOTUSblog. The core of Kennedy’s argument, legally and philosophically, comes early in it. Not surprisingly to me, Lawrence plays a role in Kennedy’s core argument that marriage is a federal issue, and not a state issue:

Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, 388 U. S. 1, 12, invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78, 95, held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship involving opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. …

Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. 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. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.


I’ve been arguing ever since Lawrence was decided that it would overturn all sorts of laws, as well as federalize most social issues. Lawrence overturned a rather antiquated but still-used sodomy law in Texas on the basis that it interfered with private conduct between consenting adults, among other issues. Clarence Thomas blasted that decision by noting that stupid laws don’t rise to the level of federal scrutiny just based on their stupidity alone, and that the holding in Lawrence would soon be used to justify federal intervention in many other contexts. And here we are. There are, in fact, twenty-one separate references to Lawrence in this document, most of them in the majority opinion.

Here’s an especially enlightening reference, and a fulfillment of Thomas’ prophecy:

As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made samesex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.

Chief Justice John Riberts wrote the dissent in this case, and he also turns to Lawrence, but to demonstrate the expansion of its doctrine beyond its stated scope. Lawrence attempted to limit government intrusion, Roberts argues, while the majority are now using it for even greater government intrusion:


Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.”

Roberts also rebuts the claim that the Equal Protection Clause covers this decision:

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Ante, at 22. Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009). In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment).

It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.


Scalia, as is his wont, issued a more scathing concurrence to Roberts, excoriating the “mummeries” of the majority:

We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he 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 . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.


Note what Scalia says about this being a threat to our democracy. He’s not talking about same-sex marriage; in fact, Scalia praises the debate over the definition of marriage as “American democracy at its best.” What Scalia decries is the court’s move to make itself the arbiter of every social and legal issue, whether or not it falls under the federal government’s purview, by abusing the Equal Protection Clause of the 14th Amendment, among other devices. It’s legislative power without any check or balance, and goes far beyond the boundaries of what the Constitution imagined as a role for the court, or even what precedent had established until the New Deal era.

All of this was true in Lawrence as well. This is just the fruit of that tree finally ripening, and it won’t be the last of it, either. Just wait for challenges to polygamy bans to rise to the Supreme Court. What in this decision would keep the court from declaring that a right under Lawrence? Tellingly, none of the justices writing today even mentions polygamy at all, which leaves that question wide open for the next test.

Overdue update: In fact, Roberts did mention plural marriage, just not the word “polygamy.” We have a couple of other posts on the topic now, so I’d refer readers to those for further discussion, but my apologies for the oversight.

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