Today’s majority opinion in Obergefell v. Hodges, striking down state bans on same-sex marriage, is an ode to love—and the law. Authored by Justice Anthony Kennedy, who was joined by the Court’s four liberal justices, it’s also an homage to the Constitution’s guarantees of equal protection, an affirmation of the role of the Court in interpreting the Constitution, and an exposition on the nature of tolerance and acceptance, including religious tolerance, in a democratic society.
The right to marry, the Court held today, “is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”
At its core, the majority opinion celebrates the special bonds and intimacy between couples, whether gay or straight, whether interested in children or not, and affirms that all couples have equal rights to participate in marriage. While the four conservative dissenters rejected the concept that the Constitution, or the Court, or even any branch of the government should protect the equality and therefore dignity of its citizens, the majority opinion hinges on the Court’s precedents in doing exactly that. It draws on a series of cases reaching back to Griswold v. Connecticut, which in 1965 struck down laws criminalizing the sale and purchase of contraception, Loving v. Virginia, which in 1967 struck down laws barring marriages between couples of different races, and, of course, Lawrence v. Texas, which in 2003 struck down anti-sodomy laws, and United States v. Windsor, which invalidated the Defense of Marriage Act ten years later.
Kennedy answered conservative claims that marriage equality would undermine the institution of marriage, arguing that “far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” Preempting claims that same-sex couples have attained many rights in recent decades, and they shouldn’t then undermine the historic institution of marriage, Kennedy argued that Lawrence, for example, provides insufficient protection under the Constitution because going from “outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.” The Constitutional guarantee of equal protection, the majority wrote, ensures that both same-sex and opposite-sex couples equally “may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”
But in separate dissenting opinions, the four conservative justices issued dire, apocalyptic warnings of what they portray as the impact of judicial overreach and a coming infringement on religious exercise. For the dissenters, the decision represented a “judicial putsch” (Antonin Scalia) and “nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to” (Chief Justice John Roberts). It “makes only a weak gesture toward religious liberty in a single paragraph” (Clarence Thomas), and will be used “to vilify Americans who are unwilling to assent to the new orthodoxy” (Samuel Alito).
Here’s that single paragraph in the majority opinion that Thomas finds so distressing:
Finally, it 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. 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. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
The conservatives, though, refuse to acknowledge that the Constitution can both guarantee the Free Exercise rights of opponents of same-sex marriage and the Equal Protection rights of same-sex couples. Taken together, the four dissenting opinions will fuel ongoing grievances about “judicial tyranny” forcing opponents of same-sex marriage into, as Alito put it, a “new orthodoxy” which will strip them of their religious rights.
Roberts ominously predicted religious objectors would face an unfriendly court should they bring their grievances there. “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples,” he wrote in his dissent. “There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
It’s not surprising, then, that the American Conservative Union chairman Matt Schlapp said in a statement this afternoon,”Today’s opinion creates the Church of the Supreme Court, with President Obama serving as its High Priest.” That’s undoubtedly only the beginning of the overheated rhetoric to come.
The majority opinion, though, gamed out all these arguments. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here,” Kennedy wrote.
The dissenters could only focus on, in Alito’s words, the “marginalization of the many Americans who have traditional ideas.” The notion that the Constitution protects the rights of citizens to equality and dignity appeared lost on them. Thomas not only refused to acknowledge that the Court has historically interpreted the Constitution to ameliorate the infringement of the right to equal protection, he refused to acknowledge such wrongs even existed. “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved,” he wrote in a jaw-dropping passage. “Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.”
Under Windsor, bans on same-sex marriage, like the Defense of Marriage Act, “impermissibly disparage[]” same-sex couples “who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” That might not have always been clear to us, Kennedy wrote, but “the nature of injustice is that we may not always see it in our own times.” The framers may not have been able to predict all future injustices. But “[w]hen new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
It’s precisely that new insight that the dissenters refuse to accept, worshipping originalism over human beings. Scalia even grumbled that the lack of religious and other diversity on the Court undermined the validity of its decision. “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine,” he wrote, “is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
But there, again, together with Thomas, he utterly misses what made this decision possible, and desirable: that the Court has recognized and protected the human rights of those traditionally not represented in the echelons of power. Scalia is just so undone by the majority opinion that he thinks that he is now one of the oppressed.
