Thanks to a 5-4 decision written by Justice Anthony Kennedy, gay Americans now have a recognized, constitutional right to marry in all 50 states, territories and the District of Columbia.
That of course includes Georgia, which had passed a ban on such marriage. All states must license gay couples to marry, and must recognize those marriages conducted by other states.
Can I have an amen?
Opponents of the decision will of course decry it as a diminishing of marriage, as even anti-marriage. I do not understand that argument. The ruling today celebrates the emotional, spiritual, societal and legal centrality of marriage, declaring that under the Constitution it cannot be granted to some people but denied to others based on their sexual identification. The right to marry is fundamental.
In his decision, Kennedy cites a 1986 Supreme Court decision, Hardwick v. Georgia, in which justices upheld a state law that criminalized gay sex. That ruling came less than 30 years ago, so the changes that have occurred have come with stunning speed. As Kennedy also notes rather wryly, “The nature of injustice is that we may not always see it in our own times.”
That certainly applies to the man who strenuously and successfully argued the Hardwick case for Georgia, then-Attorney General Mike Bowers, who is now an advocate for gay rights and gay equality.
The dissents in the case are vigorous and strongly worded. “The majority’s decision is an act of will, not legal judgment,” Chief Justice John Roberts writes. “The right it announces has no basis in the Constitution or this court’s precedent.”
Justice Antonin Scalia likewise claims that “the substance of today’s decree is not of immense personal importance to me,” but the means by which it was reached is deeply troubling:
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.”
In his majority opinion, Kennedy attempts to address that concern of the court creating liberties that the Founders had not envisioned. He writes:
“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. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
What Kennedy, Roberts and Scalia are debating is a fundamentally important issue, but the history of the court offers multiple examples of the process that Kennedy describes. In its Dred Scott decision of 1857, for example, the court ruled that black Americans are in fact not Americans at all, that no descendant of a person of African descent brought here as a slave could ever be recognized as a citizen of this country.
That was the understanding of its era and also the understanding of many of the Founders, but in time that understanding changed and changed dramatically. It changed because, to cite Kennedy again, “new insight reveals discord between the Constitution’s central protections and a received legal stricture, (and) a claim to liberty must be addressed.”
In Loving v. Virginia, the court ruled that laws barring racial intermarriage were unconstitutional. It reached that decision even though such laws had been on the books dating back to before the Revolution and had never been successfully challenged. The Founding Fathers clearly considered anti-miscegenation laws constitutional, but in 1967 a unanimous Supreme Court, citing the same document drafted by the Founders, ruled otherwise.
In Brown v. Board of Education in 1954, the Court likewise ruled that “separate but equal” systems of education were unconstitutional, a decision that reversed a Court decision of more than 50 years earlier.
Had the Constitution been changed in those 58 years between Brown and Plessy v. Ferguson? No, it had not, not in ways that affected that issue. But our understanding of the Constitution’s promises of liberty and equality changed significantly in that time, and the Brown court recognized that change.
Obergefell v. Hodges is another in that line of decisions, and will be remembered as a landmark decision in the realization of the promise that this country embodies. The fundamental right of equal protection under the law now applies to Americans regardless of their sexual orientation. That is cause for celebration.