Today, the U.S. Supreme Court handed down one of the most highly anticipated decisions of the term. Justice Kennedy delivered the opinion of the Court, which held:
- The Constitution requires that all states perform same-sex marriages.
- A state cannot refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.
The case, Obergefell v. Hodges, was actually four cases consolidated into one for the purposes of argument and decision.
Verdict columnists have written about these cases in nearly every stage of litigation and appeal:
- Last Gasps: Texas Tries to Stop Court From Granting Same-Sex Divorce, by Joanna Grossman (June 23, 2015)
- Why Can Clergy Opt Out of Same-Sex Marriage?, by Michael Dorf (May 6, 2015)
- Justice Alito Asks Whether Non-Romantic Couples Should Have the Right to Marry: Absurd Question?, by Sherry Colb (May 5, 2015)
- Constitutional Curiosities at the Supreme Court in the Same-Sex Marriage Cases, by Marci Hamilton (April 30, 2015)
- Interstate Marriage Recognition: When History Meets the Supreme Court, by Joanna Grossman (April 28, 2015)
- What Same-Sex Marriage Teaches About Social Change and the Supreme Court, by Michael Dorf (April 22, 2015)
- The Final Showdown: The Supreme Court Agrees to Decide Whether Bans on Marriages by Same-Sex Couples are Unconstitutional, by Joanna Grossman (January 28, 2015)
- The Question Is How, Not Whether, the Supreme Court Will Find a Right to Same-Sex Marriage, by Michael Dorf (January 26, 2015)
- How the Supreme Court’s Inaction on Same-Sex Marriage Echoes Its Conduct in the Civil Rights Era, by Michael Dorf (October 17, 2014)
- Two New Rulings Unmask the Weakness of the Case Against Marriage Equality, by Michael Dorf (September 10, 2014)
- A Decade of Change: The Tenth Anniversary of Same-Sex Marriage in the United States, by Joanna Grossman (May 27, 2014)
- Ohio’s March Toward Marriage Equality, by David Kemp (December 30, 2013)
- Falling Dominoes: Same-Sex Spouses Gain More Recognition Rights, by Joanna Grossman (September 3, 2013)
- The Imminent Demise of Section 2 of the Defense of Marriage Act, by David Kemp (August 12, 2013)
Two years ago, Justice Kennedy authored the 5–4 majority opinion in United States v. Windsor striking down the provision of the federal Defense of Marriage Act that defined marriage, for purposes of federal law, as a union between a man and a woman only. Justice Kennedy also authored the majority opinion in the seminal 2003 case Lawrence v. Texas, which held that the Due Process Clause of the Constitution protects private sexual intimacy between consenting adults, regardless of their sex. And even before that case, in 1996 Justice Kennedy authored the majority opinion in Romer v. Evans, in which the Court held unconstitutional a Colorado referendum prohibiting any type of legal protections for individuals on the basis of sexual orientation. A somewhat unlikely champion of gay rights, Justice Kennedy has been the center of attention among those who sought to predict the outcome of Obergefell.
Unlike in Windsor, where proponents of federalism (of whom Justice Kennedy is one) and proponents of gay rights (of whom Justice Kennedy would seem to be one, given his role in the seminal gay rights cases) were aligned in the outcome they sought, Obergefell ostensibly pitted one group against the other. The Court’s powerful language clearly articulates what it found more persuasive:
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.
Predictably, Chief Justice Roberts and Justices Scalia, Thomas, and Alito each filed their own written dissent decrying the majority’s holding and warning of the dangers of supposedly departing from the Constitution.
But today, much of the nation celebrates that we are more equal.
