The same-sex marriage decisions; a view from inside the SCOTUS


Cara L. Gallagher, weekend contributor

History happened yesterday. Will you remember where you were when the same-sex marriage decisions came down? I will. I was inside the Court when we all sat up somewhat shocked to hear the first case of the day was Obergefell v. Hodges. Again, I am lousy at predicting what cases we’ll get decisions on each day. This fact is already entered into the record. But because it was a decision of such importance, for the first time, I stopped writing, listened, and looked around to see how the audience, the public, were not only hearing but experiencing what I was hearing.

It wasn’t obvious from the start of Kennedy’s reading of the majority (made up of the four liberal justices) decision that it would come out on the side of the same-sex couples, many of which were in the Court to hear their case. He started off referencing the “millennia” of the institution of marriage. Those who listened to the oral arguments back in March will recall Kennedy used this word a lot to question Mary Bonauto, the attorney for the same-sex couples, on why the definition of marriage should be expanded to include same-sex couples when, for so long, it has been reserved to one man-one woman.

Kennedy quickly addressed the legal justification for supporting the same-sex couples. The majority ruled same-sex couples have a fundamental right to marry, just as opposite sex couples do. The Due Process clause and Equal Protection clause of the 14th Amendment protect this right and states must recognize the marriage licenses of couples. To the majority, the definition of marriage is not static and has never been. It has evolved from a time when women were married off to men chosen by their parents for financial gain, where their rights were subsumed to men (coverture), to one that primarily served procreative purposes, and finally to the version that exists today – marry who you love for whatever reason you want. Such personal choice has been celebrated in a patchwork system where some states allow gay marriage while others do not. But today’s decision mandates uniformity in legal doctrine. According to the majority, “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”

Emboldening the majority’s defense of their opinion is the belief that same-sex couples with children deserve the dignity and eradication of stigma that will flow from not simply social norms and practices, but legal acceptance of their unions from the states in which they live. Yes, a federal decision on this matter quashes public debate and takes the political decision-making power out of the hands of states, some moving faster on same-sex marriage legislation than others. On that point, the majority said, “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’” (The latter quote is cited in the decision from West Virginia Bd. of Ed. v. Barnette)

IMG_0494It was at this moment that I stopped and looked around at the faces in the Court. Listening with smiles and quiet tears were several people sitting near me. I saw the petitioners and a member of the clergy sitting, perhaps appropriately, on opposite sides of the aisle in the general public area. Justice Stevens was in the Court as well. In the seats of the Supreme Court bar, which are front and center inside the Court, was notable same-sex marriage advocate and U.S. Deputy Assistant Attorney General at the Department of Justice Civil Rights Division Pam Karlan, Mary Bonauto, and Solicitor General Donald Verrilli. The Court often feels like it’s in an unnecessary state of lock down – especially on decision days – so the security marshals ban celebrations, cheers, cries, or any other expression. But the feeling was jubilation, complete and total satisfaction. Once dismissed, many near me stood up, hugged, and wiped away tears.

As jubilant and electrified as some people were, the subsequent dissent read by Chief Justice Roberts killed any and all enthusiasm in the room. Roberts may have read his dissent – one of four dissents written by every member of the minority group – to remind everyone that yesterday’s Obamacare ruling is not the liberal pivot you may have thought you were getting from the Roberts Court. I wrote about the potential for this pivot just last night after the King case was announced. In his blistering dissent that lasted as long, if not longer, than the time it took Kennedy to read the majority opinion, he openly threw shine on his bench mates: “Today, five lawyers have ordered states to change their laws,””Just who do we think we are?”

The power to decide laws defining marriage has and should forever be a power held by the states, derived from the people, according to Roberts’ dissent. “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.” This is the default response the conservative justices often give in federalist cases like this one.

What stung the most and hit the people who’d just been told they are equal in the eyes of the law the hardest was his final paragraph: “Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.” Further, “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. 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.”

The “acceptance” line read to a class of people for whom acceptance both socially and constitutionally is so seldom protected by the Federal government, was the hardest to watch wash over those sitting near me.

Roberts may have gotten the last word in, but the same-sex and LGBTQ members and allies gathered together in the biggest crowd of people I’ve ever seen outside the SCOTUS, got the last laugh. They have legal protections rooted in two fundamental Constitutional principles. This decision came down at the perfect time as some cities celebrate their Pride Day this weekend and thousands of others will spend their celebrations at wedding receptions and enjoying honeymoons.

Follow Cara as she spends one more day covering the final three SCOTUS cases this term. @SupremeBystandr

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

268 thoughts on “The same-sex marriage decisions; a view from inside the SCOTUS”

  1. “Matching people against the standards set by biological realities has always been a trustworthy way of identifying disorders, and in the end it actually helped people. When that standard is removed as oppressive, people will be left to wallow in an understanding of humanity rooted not in nature but self-determination alone. Psychology categorized homosexuality a disorder until 1973 for a reason, because it was and remains a breach of the natural reproductive order.”

    1. Well said, Olly. And now Psychologists are confused about what to do with pedophilia and the term Pedophilic Sexual Orientation.

  2. Sheesh Squeeky, you certainly have a very dark outlook on life, that’s too bad.

  3. @I.Annie

    Just because something works out AFTER something bad happens, is no reason to go straight to that same place without the bad thing happening. Gee, somebody who loses their legs in a car accident will survive and go on with their life, but no one equates that with something a person ought to do.

    Similarly, if a married couple has children, and daddy takes up with a young stripper, mom and the kids will survive. But why take that situation as either normal or desirable??? That is what I meant above when I said societies that confuse abnormal with normal, tend to get delusional and all kinds of silliness get put on the table.

    But, lets take one more example. Bob got the crap beat out of him by an abusive father, and his mother stayed with the dad. Still, Bob he went to college, got a 4.0 and became a lawyer. dad died young from a mysterious ailment, and mom inherited $5 million bucks at age 42.

    Sooo, I say I don’t want to to marry an abusive man who will beat me and the kids. And somebody says, oh Bob and his mother were both beaten, and they came out all right!

    Squeeky Fromm
    Girl Reporter

  4. Patricia, no one can deny there are parents who have no business being parents. If women don’t want children, why not get an abortion early instead of killing a child already born? Better yet such women should be on BC all their fertile years and never have children at all.

  5. Squeeky, children are often raised succesfully by mothers who have been divorced or are widowed. Many of those children turn out just fine, great in fact. My four kids are an example of this, a mom couldn’t ask for better children. I guess some folks maybe shouldn’t have children, perhaps it’s for the best to remain childless for some people. And Squeeky, married folks and folks in relationships don’t stop having great sex and even sensuously and gently dance their way to the bedroom some nights… Oops, maybe TMI.

  6. Squeek, Amen, and I salute you. The inner cities of this country show what us a one parent culture looks like.

  7. Matt gets shot 3 times in the head, and Sweat gets shot in the back. Don’t white convicts lives matter?

    1. Nick – I am surprised the Sweat is still alive. He is supposed to be dead. Ideally both of them should be dead as an object lesson to the other cons.

  8. @I.Annie

    Oh, I wouldn’t bring a child into the world without its father being around. I think that is just totally selfish. A kid needs both its mother and father. Sooo, I will just pass on the whole business. Here is my take on it;

    This is life without marriage and all the relationship stuff:

    And this is life with a marriage and with someone:

    Just for what it’s worth, the tango (the first dance) sort of arose out of the second one, the Apache dance, because too many women were getting hurt dancing like that. I also tried to pick a slower type tango as an example, because IMO too many women are making way too aggressive kicks and things, which ruins the subtleties of the tango. The sexuality has to be implied, and not degenerate into a sexual rompfest ala can-can on the dance floor. Which technically, real historical can-can dancing is done without panties. Which is why it was sooo shocking at the time.

    Squeeky Fromm
    Girl Reporter

  9. “How could one not love one’s own child they gave life to?”

    That is an offensive question. There are literally millions of children beaten and murdered by mothers throughout the world. Who ever said there are no stupid questions?


    NY Governor announces capture of prison escapee and that his overpaid and overcompensated prima donna governmental employee incompetence and failure has resulted in:

    1. No death penalty for murderers

    2. Enormous amounts of overtime pay for NY police agencies to correct their own mistakes,

    3. Congratulations not charges await overpaid incompetent governmental workers and officials who mismanaged and failed to perform.

    Government employment. It’s good work if you can get it. Get paid to make a mess. Then get paid twice as much to clean up the mess you just made (what are we, stupid?).

    How about citizens obtain the same level or corruption and incompetence by hiring illegal aliens at minimum wage. Americans would get the same performance for a tenth of the wage.

    At $150K+ per cop on your TV screen, taxpayers get the bill (i.e. shaft) again.

    Oops! That’s not a NEWSFLASH.

    P.S. The Lincoln conspirators were dead within 3 months.

  11. Oh, just one word of caution when considering having children Squeeky, we aren’t guaranteed we get children that are exactly as we wish they were. Sometimes people’s children turn out to be homosexualthen what would you do? While this wouldn’t bother some parents in the least, it might be devastating for other parents who blame homosexuals for their sexual identity. But how could one not love one’s own child they gave life to?

  12. Squeeky, hey you’re an independent woman. If you want a child and not the man to go with it, buy yourself some sperm at a sperm bank and have a child before you get to old. I’ve never regretted having my four children, tough as it was after I was divorced. They’ve been a true blessing and my grandchildren are the icing on the cake of life! I like cats, but since I spend a great deal of my time away from home several times a year, I don’t have any pets. I did cat sit my daughter’s cat for a year while she was in Afghanistan. I’ve been blessed to have a truly decent man that was in my life for many years after my divorce, he died too young. Sooo Squeeky, don’t give up on love, you’re far too young. I know men can be like grunty little malebeasts, but some are actually quite wonderful.

  13. @I.Annie

    That is cute! You ought to see my little munchkin! She is so adorable! She is fearless, and into everything. I have been wanting to dress her up in baby clothes and push her around in a stroller, sooo I am kind of scared my biological clock is starting to tick??? My goodness, I sure hope not! Because this is more my speed:

    Squeeky Fromm
    Girl Reporter

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