Editor’s Note: Updated with citations from the justices and reactions from those in attendance.
After decades of struggle, marriage equality is now the law of the land. Millions of Americans have been waiting for our nation’s highest court to recognize marriage equality–and it just did in a 5-4 opinion, issued by Justice Anthony Kennedy. Ever since the tide turned sharply in 2013, when the Court found that the federal government had to recognize same-sex married couples under federal law, case after case pointed toward what seemed an inevitable national consensus–at least until the Sixth Circuit Court of Appeals issued a contrary decision, setting up a showdown at the Supreme Court.
The decision in Obergefell v. Hodges was announced to the cheers of hundreds who gathered on the Court’s steps. Writing for the majority, Kennedy’s words resonated with the import of the decision: “It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”
To recap, Obergefell v. Hodges comprises four consolidated cases from Ohio, Kentucky, Michigan, and Tennessee which pose the same essential questions: (1) are state bans on same-sex marriage constitutional and (2) if such bans are constitutional, are states that ban same-sex marriage required to recognize such marriages performed in other states.
In his eloquent majority opinion, Justice Anthony Kennedy answered the first question with a resounding “no.” The Court’s four left-leaning Justices agreed with him that the Fourteenth Amendment requires states to perform same-sex marriages. According to the Court, “[t]he nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.” The Court held that the right to marry is protected under the due process and equal protection clauses of the Fourteenth Amendment, stating that the right to marry is fundamental: as a result, marriage equality is now the law of the land in all fifty states.
Justice Kennedy is an unlikely champion for LGBT rights, having been appointed as a presumably “safe” conservative seat by President Ronald Reagan. For decades, Kennedy voted fairly consistently with his fellow conservatives, leading to an often fractured 5-4 majority on a number of key cases with far-reaching social and legal implications. But on the question of LGBT rights, Kennedy surprised nearly everyone with his first seminal opinion, Romer v. Evans, which struck down Colorado’s anti-gay Amendment 2 in 1996. Then nearly a decade later, Kennedy wrote the majority opinion in Lawrence v. Texas, which ruled homosexual sodomy laws unconstitutional, flatly overturning the notorious case of Bowers v. Hardwick written just 17 years earlier.
But it was his opinion in United States v. Windsor, in which the Court overturned the Defense of Marriage Act (DOMA), that set the stage for today’s historic ruling. Kennedy wrote in that case that DOMA imposed a “disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” In his dissent Scalia warned, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” His dissent, ironically, was cited often by challengers to state laws restricting the right of marriage to just heterosexual couples.
While momentous, to many the Court’s decision comes as no great surprise. After all, as court watchers noted, the Court all but guaranteed a favorable outcome in February when, in an unprecedented move, the justices declined to stay a federal judge’s order that invalidated Alabama’s ban on same-sex marriage. Moreover, traditionally conservative Ireland recently became the first country in the world to legalize same-sex marriage by popular vote, and just last Friday, the Supreme Court of Mexico, a country that is more than 80% Catholic, legalized same-sex unions. On the question of human rights, Justice Kennedy is known to look not only to recent trends in U.S. law, but to the state of the law in other nations. But surprise or no, the Court’s decision today will go down in history as a capstone of one of the most significant civil rights movements in a generation.
Today, Justice Kennedy closed his opinion, and an era, with a particularly poignant thought:
“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. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one civilization’s oldest institution. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Advocates have long insisted that the fight for marriage equality was never just about the right to marry; it was about basic human dignity. The story at the heart of the named case, Obergefell v. Hodges exemplifies that well. The facts of that case are compelling: Jim Obergefell and John Arthur, a couple for over twenty years, had flown from their home in Ohio to Maryland to get married, due to Arthur’s rapidly failing health. Arthur had been diagnosed with amyotrophic lateral sclerosis (ALS), and the swift progression of his disease heightened the couple’s sense of urgency to have their union recognized before Arthur passed away. The two were wed aboard a medical jet in Maryland in July of 2013; Arthur died a few months later. Despite the fact that Obergefell and Arthur had won the right to have Arthur’s death certificate reflect his true marital status, that decision was appealed by the State of Ohio—meaning that the death certificate could be rewritten to say that Arthur was single at the time of his death.
After today’s decision, couples like Obergefell and Arthur will never again have to face that kind of indignity at the hands of the state, nor will they have to endure the painful uncertainty of wondering whether their relationships will be recognized depending upon where they happen to live. Marriages in America will no longer be artificially bifurcated based on the sex of the participants. Love has always been love—but after today, marriage is also just marriage.