Skip to Content

Supreme Court blesses same-sex marriage, 5-4

Supreme Court same sex marriageSupreme Court same sex marriage
The U.S. Supreme Court voted 5-4 that there is a constitutional right to same-sex marriage. Photographer: Roger L. Wollenberg/Pool via BloombergPhotograph by Roger L. Wollenberg — Bloomberg via Getty Images

In a historic ruling by Justice Anthony Kennedy, the U.S. Supreme Court has found that the Constitution’s Due Process and Equal Protection clauses guarantee same-sex couples the right to marry nationwide.

“The limitation of marriage to opposite-sex couples may long have seemed natural and just,” Kennedy wrote, “but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

In the emotional final paragraph of his 33-page opinion, he concluded: “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 its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Each of the four dissenting justices—Chief Justice John Roberts, Jr., Justice Antonin Scalia, Justice Clarence Thomas, and Samuel Alito, Jr.—wrote separately, though also joining in at least one of the others’ opinions.

The Chief Justice wrote the principal dissent, confounding those who had predicted that the young chief, looking to his legacy, might abandon his conservative jurisprudence in order to be on the “right side of history.”

“Although the policy arguments for extending marriage to same-sex couples may be compelling,” Roberts wrote, “the legal arguments for requiring such an extension are not. … Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. . . . The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”

Justice Scalia in his dissent, said that the “substance” of the ruling was “not of immense importance to me,” but that the way the Court reached that result posed “a threat to American democracy” and amounted to a “judicial Putsch.” He asserted: “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. This practice of constitutional revision by an unelected committee of nine … robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

Justice Thomas, in turn, protested: “The majority invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.”

Finally, Justice Alito focused on the stigmatizing impact he fears the ruling will have on those who oppose same-sex marriage. “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” he wrote. “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. … Those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

The landmark ruling came in four consolidated cases from Michigan, Kentucky, Ohio, and Tennessee, and will be known in the history books as Obergefell v. Hodges, the caption of the Michigan case.

In an amicus brief, dozens of Fortune 500 companies had supported recognition of a constitutional right to same-sex marriage and arguing: “Employers are better served by a uniform marriage rule that gives equal dignity to employee relationships.” Signatories included Apple (AAPL) Bank of America (BAC), Facebook (FB) , General Electric (GE), General Mills (GIS), Goldman Sachs (GS), Google (GOOG), PepsiCo (PEP), Target (TGT), and Verizon Communications (VZ).

How we got here

Today’s decision represents the culmination of one the fastest, most dramatic, most bipartisan social movements and constitutional turnarounds in American history.

Forty-three years ago, in 1972, the Court unanimously dismissed the constitutional protests of two Minneapolis men who had been refused a marriage license, Richard John Baker and James Michael McConnell, in a single sentence.

And just under 30 years ago, in 1986, the Supreme Court upheld the constitutionality of laws punishing consensual homosexual conduct as a felony.

But ten years later, the tide began to turn. In 1996 a 6-3 majority of the Court, led by Justice Kennedy, struck down a Colorado law that sought to bar local ordinances banning discrimination based on sexual orientation. Kennedy wrote there that “[A] bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

In 2003, in another opinion by Justice Kennedy, the Court struck down a Texas law criminalizing consensual homosexual conduct, overruling its 1986 ruling.

Finally, just two years ago, in yet another Kennedy opinion, the Court invalidated a portion of the federal Defense of Marriage Act—enacted during the Clinton Administration—which had refused to allow same-sex couples, lawfully married under state law, from being recognized as “spouses” under federal law.

At the time of the argument, 37 states and the District of Columbia permitted same-sex marriage, while 13 banned it. Now such unions will be recognized nationwide.

Today’s decision, the most important constitutional decision of the young century, marks the crowning achievement of the gay rights movement.

SCOTUS Same-sex Marriage