At 10:00 AM Eastern Time today, the US Supreme Court convened in its marble adorned chamber in the heart of Washington, DC. First up on the docket this morning was the announcement that everyone had been waiting for Chief Justice John Roberts to make – that Justice Anthony Kennedy had the opinion of the Court in Obergefell v. Hodges, the landmark marriage case now decided exactly two years since the Court struck down part of the Defense of Marriage Act, and exactly twelve years since it struck down laws prohibiting sodomy. The decision was 5-4, with Justice Kennedy joined by liberal justices Breyer, Ginsburg, Sotomayor, and Kagan. Chief Justice Roberts, along with Justices Scalia, Thomas, and Alito, were in the minority, each of them writing strident dissents.
Justice Kennedy, whose status as a gay rights hero was cemented today, was also the justice behind every single gay rights decision in the Court’s history, starting with Romer v. Evans which struck down discriminatory laws in Colorado, through to Lawrence v. Texas, which overturned statutes that criminalized gay sex, to U.S. v. Windsor, which forced the federal government to recognize same-sex marriage, and on to today, where he and his colleagues took the step many had hoped they would take two years ago when California’s Proposition 8 was before the justices.
Kennedy, whose writing on issues of dignity borders on the poetic, opened his decision reaffirming the place of the courts in ensuring that minority rights are respected, going on to note that fundamental rights don’t belong in the ballot box. He finished his decision simply, but poignantly, stating
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
While all of the dissenting Justices penned their own dissents, a highly unusual move, Conservative firebrand Antonin Scalia likely had the best one-liner, accusing the majority of taking the discipline and reasoning of the Court’s history, and turning it into “the mystical aphorisms of a fortune cookie.” Chief Justice Roberts, while careful not to denigrate same-sex couples, made it clear that he viewed the Courts as the wrong place to decide the issue, noting that the end of open debate on the issue likely means the end of open minds. Perhaps the final lines of his dissent said all one needs to know about the views of a Chief Justice relegated to the minority in what may be the most consequential decision of his time on the Court:
“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. 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.”
The practical effects of today’s decision are already being felt, with marriages already starting in some of the remaining states that, before this morning, had banned same-sex marriage, and with President Obama holding his second press conference in as many days praising the Court’s work. Though he fumbled the name of Jim Obergefell (who could blame him), Obama celebrated the work not just of the couples involved in this case, but also of everyone who has fought over many decades to advance the cause of LGBT equality. In what may be the most memorable line in his speech, Obama noted that
“Progress on this journey often comes in small increments, sometimes two steps forward, one step back, propelled by the persistent effort of dedicated citizens. And then sometimes, there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.”
On a personal note, I have been writing about the marriage equality issue since 2008, when Proposition 8 passed in California. Through that time, and through ups and downs, I have listened to countless hours of legal arguments, read thousands of pages of legal briefs, judgments, opinions, articles, and studies. In many senses, I have come to know the plaintiffs in these cases without ever having had the honour and privilege of meeting them. It would appear (happily) that this will be my last piece writing about the struggle for marriage equality in the United States. I would be remiss if I didn’t take this opportunity to pay tribute to the bravery of the couples who put their lives on hold to fight for the rights of their fellow citizens, to the activists and advocates who refused to quit, and who will doubtless continue to fight beyond today. They are truly heroes, and I am in awe of them. In an era of cynicism, they have been an inspiration, and today their tireless work let us see America at its very best.
Submitted By: Sameer Ismail
Sameer Ismail has been a political consultant for a number of years. He holds degrees in Political Science and Law.
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