WASHINGTON—The U.S. Supreme Court legalized same-sex marriage nationwide on June 26 in a sweeping, moralizing opinion written by Justice Anthony Kennedy. He delivered the ruling softly and without much expression, but outside the courtroom, huge crowds swarmed the Supreme Court plaza in celebration, singing the national anthem.
As anticipated since the high court first took up the case, the ruling was 5-4, with Kennedy joining the court’s liberals: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The dissenters—Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito—each penned separate dissents, an expression of profound frustration. Scalia opened his apoplectic dissent, concurring with Roberts’ dissent, by saying, “I write separately to call attention to this court’s threat to American democracy.”
“Just who do we think we are?” Roberts asked in the courtroom. “This is a court, not a legislature.”
With soaring rhetoric, Kennedy declared in his ruling that same-sex couples have a fundamental right to marriage licenses, just as opposite-sex couples do. He said marriage had evolved over time, pointing to the end of arranged marriages and coverture, where women were treated as a legal non-entity after they married.
“These new insights have strengthened, not weakened, the institution of marriage,” Kennedy wrote.
Then he attempted to define what marriage is: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Scalia, in his dissent, picked out such statements and called them “mummeries” and “the mystical aphorisms of the fortune cookie.”)
Kennedy emphasized several times throughout his ruling that marriage is between “two persons,” likely in response to the questions during the oral arguments about whether legalizing polygamy would necessarily follow a legalization of gay marriage.
Though technical legal arguments were not central in Kennedy’s opinion, the legal question before the court was whether state laws defining marriage as between one man and one woman violated the 14th Amendment, which guarantees due process (the right to liberty) and equal protection. Kennedy’s ruling said the state laws violated both.
But he did not create a new “suspect class” for sexual orientation, a legal term that means he did not give sexual orientation the same protections as race or gender. He confined the ruling to say that state marriage licensing laws violated the 14th Amendment. That means, for now, the sweeping “fundamental rights” language is limited to gay couples’ interactions with the state in acquiring a marriage license.
But the language in Kennedy’s ruling about state laws demeaning gay people could be used in other legal scenarios. He talked about state marriage laws that “demean” the “dignity” and “nobility” of same-sex couples.
“It will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” Alito wrote in his dissent. “In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”
In referring to those who might oppose gay marriage, Kennedy never used the word “animus,” which could be helpful to religious groups.
He said those who oppose gay marriage could do so “based on decent and honorable religious or philosophical premises.” But in the next sentence he writes that when such personal beliefs are “enacted” in public policy, that “demeans or stigmatizes those whose own liberty is then denied.”
And in a later paragraph, he attempted to quell the dissenters’ concerns about religious liberty.
“[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” Kennedy wrote.
“The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
Roberts didn’t buy it.
“The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage,” Roberts wrote in his dissent. “The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses. … Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
Roberts said he expects the court will soon be asked to consider cases about how religious exercise conflicts with the “new right to same-sex marriage.”
Jim Campbell, an attorney with Alliance Defending Freedom who handles such constitutional issues, said he expects that in litigation between gay couples and religious groups, each will use different language in the Kennedy opinion. His side will point to the paragraph on religious protections, and “the other side will pull out the lofty language.”
“I don’t know how much we can get out of that paragraph,” Campbell said, referring to Kennedy’s assertion that religious organizations will still have First Amendment protections.