Another day, another U.S. Supreme Court decision that should remind us things that once made America a great country like tolerance and helping the downtrodden are not entirely extinct.
A mere 24 hours after the high court dealt a major blow to conservatives in ruling 6-3 that a key provision of the Affordable Care Act passed muster, it ruled 5-4 that the Constitution guarantees a right to same-sex marriage, providing gays a long-sought civil rights victory — a victory coming too many years after rights for blacks and women had been validated — that mirrored a seismic shift in public opinion.
Justice Anthony M. Kennedy, who has long been sympathetic to gay rights, wrote the majority opinion. He was joined by the court’s four liberal justices. Chief Justice John G. Robert Jr., who had written the majority opinion in the ACA case, was joined in dissent by the court’s three conservative justices.
“No union is more profound than marriage,” Kennedy wrote in declaring that gay and lesbian couples have a fundamental right to wed. “[I]t 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.”
“It would misunderstand these men and women to say they disrespect the idea of marriage,” Kennedy said of the couples who challenged state bans on same-sex 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.”
Roberts’ dissent was laced with backhanded praise.
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Roberts wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
In an allusion to the rapidly increasing acceptance of same-sex marriage, Justice Kennedy noted that the Constitution’s power rests with its ability to evolve along with society’s consciousness, a view that further ignited reliably inflammatory and deeply conservative Justice Antonin Scalia.
As in the ACA ruling, Scalia did not merely dissent but again showed evidence of being mentally unhinged and unsuitable even for a court that has tacked hard to the right in many cases. Using his trademark snide mockery, Scalia called the ruling a “judicial Putsch” that threatened American democracy itself. “This is a naked judicial claim to legislative — indeed, super-legislative — power,” he wrote. “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
In ruling on Obergefell v. Hodges, the court used cases from Michigan, Ohio, Kentucky and Tennessee, where restrictions on same-sex marriage were upheld by an appeals court last year, to find that the Constitution does not allow such prohibitions.
In 2013, when the justices last confronted the issue of same-sex marriage, a similarly slim majority said that a key portion of the Defense of Marriage Act — withholding the federal government’s recognition of same-sex marriages — was unconstitutional, but in a separate case, the court said procedural issues kept it from answering the constitutional question in a case from California, but allowed same-sex marriages to resume in that state.
Since then, courts across the nation with the notable exception of the federal appeals court in Cincinnati, which left intact the restrictions in the four states at issue, have struck down prohibition after prohibition against same-sex marriage. Couples may now marry in 37 states and the District of Columbia.
The court focused on the constitutionality of same-sex unions and did not directly address the next battlefield for gay-rights advocates and civil libertarians: Isn’t the argument that religious values may dictate public policy regarding secular institutions now legally invalid? And does not the decision reaffirm the separation of church and state? The answer to both should be a resounding “yes,” although conservatives and many religious leaders will vehemently disagree.
Kennedy did allude to the issue in saying that people who disagree with same-sex marriage for religious or other reasons have the freedom to believe and to speak as they wish. “But when that sincere, personal opposition becomes enacted law and public policy,” he wrote, “the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”
Speaking at the White House, President Obama called the ruling “a victory for America” and said it arrived “like a thunderbolt” after so many battles over same-sex marriage. “[It] will strengthen all of our communities,” he added.
The consequences of the ruling for the Republican Party, which has used gay bashing as a cudgel in its ceaseless cultural war waging, are perhaps not as drastic as the ACA decision, but nevertheless large in terms of the 2016 election.
Six in 10 Americans support same-sex marriage, a number that jumps to seven in 10 when the respondents know someone who is gay or lesbian, and eight in 10 among those ages 18 to 29. Next year’s election will be the first in which gay rights could be a major issue and that will put Republicans on the wrong side of history, as well as public opinion. Not exactly a winning formula.
Beyond the GOP having worked so hard to bite itself in the electoral ass and, in the process, continue its marginalization as a national political force, there is a deep irony here: The party that has blathered on and on…and on and on and on…about Family Values finds itself diametrically opposed to Americans who value access to affordable health care for their families and value people no matter what their sexual orientation happens to be.
Like I said, not exactly a winning formula.
Editor’s Note: This essay originally appeared on June 26, 2015, on Kiko’s House, a website featuring commentary by journalist and author, Shaun Mullen. It was reproduced here with the consent of Mr. Mullen.