Bans on gay marriage ruled unconstitutional

WASHINGTON – The Supreme Court’s historic ruling Friday granting gays and lesbians an equal right to marry nationwide puts an exclamation point on a profound shift in law and public attitudes, and creates the most significant and controversial new constitutional liberty in more than a generation.

Though the court’s 5-4 opinion is tightly focused on the question of same-sex unions, its broad wording and soaring rhetoric will reverberate beyond the two-decade battle for marriage equality and almost surely led to the striking down of any remaining laws that directly discriminate against people due to sexual orientation.

The landmark civil rights decision was cheered by some as a long overdue validation of a basic human right and condemned by others as an effort by liberal justices to usurp states’ rights in order to resolve a social, not legal, issue.

While same-sex marriage was already legal in more than three dozen states, the impact of the decision was immediately felt by gay and lesbian couples in the 13 mostly Southern and Midwestern states that still banned such unions.

“No longer may this liberty be denied to them,” Justice Anthony M. Kennedy wrote, declaring that gays and lesbians deserve equal respect and dignity under the due process and equal protection clauses of the 14th Amendment. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”

Same-sex couples, he wrote, “ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Kennedy put the struggle for equal rights in a historic context, building on the 1967 Loving v. Virginia decision that struck down interracial-marriage bans and the gender-discrimination rulings of the 1970s that eliminated laws that gave wives lesser rights than husbands.

The court’s decision – which comes almost 46 years to the day after the Stonewall Inn riots launched the modern-day gay-rights movement – will likely accelerate the wave of acceptance of same-sex marriage. A majority of Americans now support same-sex marriage, a reversal from just a few years ago.

Because of the shift in public opinion, it is unclear whether the decision will have the lasting controversy of cases such as Roe v. Wade, which established a constitutional right to abortion, or become embraced, as the Loving ruling on interracial marriage.

Kennedy, whose four major opinions on gay rights have cemented his legacy as the court’s strongest voice against discrimination based on sexual orientation, acknowledged that some parts of the country may not be ready to accept equality for gays and lesbians. “The nature of injustice is that we may not always see it in our own times,” he wrote.

But he argued the harm of denying gays and lesbians the equal right to marry outweighed admonitions that the court move more slowly in order to give state legislatures more time to adjust their laws. “Dignitary wounds cannot always be healed with the stroke of a pen,” he said.

In four separate and blistering dissents, conservative justices heaped scorn on the majority opinion. “This court is not a legislature (and) our Constitution does not enact any theory of marriage,” said Chief Justice John Roberts, who took the rare step of reading his dissent in court.

Some had thought Roberts might join the majority, but he wrote a 29-page dissent saying the matter should be decided in the political arena.

“If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision,” he said. But he referred to it as an “act of will, not legal judgment.”

Justice Antonin Scalia, well known for his vitriolic dissents, called the majority opinion “a judicial Putsch,” “pretentious,” “egotistic,” “silly,” and filled with “straining-to-be-memorable passages.”

In unusually personal terms even for Scalia, he mocked Kennedy’s opening sentence, saying he would sooner “hide my head in a bag” than join it.

“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.”

Amid joyous celebrations on the Supreme Court steps, James Obergefell, the lead plaintiff in the case, took a congratulatory phone call from President Barack Obama. Obergefell had sued the state of Ohio for refusing to recognize his marriage after his husband, John Arthur, died of amyotrophic lateral sclerosis.

Obama lauded the ruling during remarks in the White House Rose Garden, calling it a “victory for America.” He praised the persistence of same-sex marriage backers who took their fight to statehouses, courthouses and all the way to the Supreme Court. “Sometimes,” he said, “there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.”

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined with Kennedy to make a majority in Obergefell v. Hodges. Justices Clarence Thomas and Samuel Alito also dissented.

The ruling was no surprise since the justices had stood back in recent months and watched as federal judges, state courts, lawmakers and voters knocked down the legal barriers to gay marriages in 37 states.

That surge of support for gay marriage was set off two years ago, when the high court struck down part of the federal Defense of Marriage Act and said the marriages of same-sex couples deserved equal dignity and respect under the law.

That decision resolved only a question of federal benefits for these couples, but its reasoning spurred judges to void a series of state laws that had limited marriage to a man and a woman.

Though Friday’s decision addressed only the question of same-sex marriage, the ruling may very well send a legal message throughout the country that discrimination based on sexual orientation is on shaky legal ground.

In addition to clearing the way for same-sex marriage nationwide, Friday’s decision may help end discrimination against gays and lesbians in other matters, such as adoption and custody rights, legal experts say.

“This will have tremendous impact on family law in particular,” said Sarah Warbelow, the top lawyer for the Human Rights Campaign in Washington. “This will be a tool to help us begin to eradicate those instances of discrimination.”