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)
It 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.
I’m still trying to reconcile the capricious reasoning of Chief Justice Roberts when he makes this following comment in dissent. Where was that jurist on Thursday?
“[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”
Squeeky Fromm Girl Reporter
Yes it is an eye opener…..
But there again democracy took about 800 years to develop in the UK.
Olly is right it does take a long time for democracy to achieve outcomes.
But I think judges should interpret laws rather than make them. I know this is a mute point but sometimes there is a fine line between interpretation of existing law and such a judgment creating new law, which Congress might reject under certain circumstances.
Could not democracy be over-ruled by edict?
Eighty years ago democracy was abolished in Germany and the people stood by and let it happen. I’m not saying for one minute that this would happen in the United States, but I am saying that Democracy should not be taken for granted.
That US democracy is currently brokered through advocacy in the courts is very illuminating and it looks like a major controversy is required to make Americans think seriously about the implications of this system.
We saw what happened to American citizens during the McCarthy Anti-American Hearings…. that’s the nearest thing I can think of which challenges the Constitution and Bill of Rights which seemed to be overuled / misinterpreted as a matter of political expediency?
So I think that the power of law resides in your democratic institutions and the ability of any theoretical “5th columnist” to adversley manipulate elected democracy through the courts is not necessarily in your democratic interests.
But there again one could consider that the courts are a third legislature which permits citizens to bring their own new “acts of parliament”. I hadn’t thought about it that way. And it would sidestep stonewalling and undemocratic tactics of the Senate and House of Representatives. In other words court action could be considered to represent a mechanism of real public participation in grass roots democratic politics?
The stumbling block still remains on whether a judge should make new law if it isnt ratified by congress?
The real hypocrisy within this blog comes from those that deny that the founding principles of equality, life, liberty and the pursuit of happiness written in our Declaration of Independence are what we are endowed with by our existence. They have denied any natural rights exist but will “own” them when it suits their purpose. They are ignorant of the position this puts them in. To deny the existence of natural rights means to deny the just reason the institution of slavery should be abolished. The security of natural, inalienable rights is the only legitimate purpose for government and the only just cause to eliminate slavery. To deny these inalienable rights is to state that equality, life, liberty and property are fabrications of the State and its people and whatever the state can “justly” provide the State and its people can take away. This position puts the natural rights deniers in the same category of every person that ever existed that believed it was “just” to subjugate men to the will of other men.
Cara, Great reporting. Like yourself, I love to look @ people’s reactions in court, but everywhere really. When there’s a big home run hit, I would always look @ my family seated near me, and other fans in the stands, as they celebrate, unlike in court, something encouraged. When I am on the witness stand and video of surveillance footage I shot is playing, I don’t watch the screen. I’ve watched the footage numerous times. I watch the jurors faces and body language. I can tell how they are receiving the video. I can tell the jurors for whom the video is merely confirmation of what they thought, that being the plaintiff was embellishing their alleged injuries. I can tell the jurors that had been taken in by the plaintiff, and now feel betrayed. Because, the videotape is truth. What the plaintiff said under oath, does not comport w/ what they are seen doing. What Roberts said is true. I hold no animosity for the plaintiff on whom I conduct surveillance. I hold no animosity toward gay people. Like most people, I have some close to me. I quote my favorite President in my lifetime, “Give ‘Em Hell” Harry. “I don’t give them hell. I just tell them the truth and they think it’s hell.”
There are basically 3 groups of people in this debate. There are those who are gay, and those not, that celebrate their decision. There are those who are gay and those who are not, who have no animosity, but do not support this decision. Some on religious grounds, some for other reasons. Finally, there are those who do not like gay people or even hate them. They of course disagree w/ this decision. What has happened the last decade or so is many people who support gay marriage have disrespectfully and dishonestly, conflated the two aforementioned groups opposed to gay marriage. That will have consequences. Anyone who understands human nature, as Roberts does, knows that. Whatever one thinks of abortion, no one can say Roe v Wade settled that emotional issue. In Roe v Wade the court got swept up and ahead of the people. They did the same in this decision, and Roberts simply pointed that out.
There are 25 verses in scripture dealing with confusion. Moses wrote this about confusion:
Lev 18:22 Thou shalt not lie with mankind, as with womankind: it is abomination.
Lev 18:23 Neither shalt thou lie with any beast to defile thyself therewith: neither shall any woman stand before a beast to lie down thereto: it is confusion.
NP,
The short answer is no, of course not.
Nothing about the 14th amendment guarantees equality for marriage based on sexual orientation. It does guarantee equality based on those characteristics one is naturally born with. The institution of marriage has always been about recognizing the relationship that will secure and grow the population and that can only occur between a man and a woman. That is the limit of the State’s concern for recognizing the institution of marriage and any further changes should be representative of our society through the popular vote within each state. In this way the State secures the rights and any cultural shifts will be supported by the majority of our citizens. Unfortunately, the central planners once again chose to bypass the will of the majority of 230 million American citizens and replace it with the majority will of nine.
@Ninian
Now you are catching on to how stuff really works in America! Congratulations!
Squeeky Fromm
Girl Reporter
It was a warm and fuzzy decision, but no, I predict you won’t see happy, little gay couples mincing off to get married in any large numbers. Particularly the men. And out of the gay men that do, about half or more will have written pre-nups which set forth the details for cheating. And most of the other half will just wing it on the outside sex.
Here is what you see 10 years from now. Gay men will still be hooking up in public restrooms, Interstate rest areas, city parks, etc. Unless science finds a cure for HIV, they will still become infected in large numbers. They will become even more promiscuous thru the use of apps, like Grindr. Foolish gay men looking for their “soul mates” will continue on a path of meaningless sexual hook-ups. Only now, they will have a new problem. They will no longer be able to blame the lack of commitment by their lover on the heterosexuals. Nope, just like the Blacks found out when they lost the realistic excuse of blaming whitey anymore, it will all be on them.
But they won’t change. Because it has never really been about any kind of mature and committed adult love. It always was, and will continue to be about sex. So, they will discover when they are in a degrading position somewhere, doing something filthy and nasty that they are ashamed of, that they can’t blame “stigmatization” anymore for their situation. No, they can blame “being in a degrading position somewhere, doing something filthy and nasty. . .” And they won’t have any real bogeymen to blame.
Meanwhile, the Queer part of LBGTQ,, will be increasingly vocal, asking even louder, “WTF do we want to act like straight couples for? Because we aren’t straight, and don’t have to live our lives in that restricted monogamous fashion.” Which will be covered by a few writers here and there, and ignored by most of the people who have been advocating for this nonsense. Because it will mean they were probably wrong, and short sighted.
Science will continue to work to discover what causes people to become gay, the same way they struggle to discover what causes Autism. They will continue to make progress, and the findings will be fought by the Gaystapo, and the people who don’t want to admit, “Yeah, maybe there really is something wrong with me. . .”
And people who define themselves as Gay, will continue to leave that lifestyle, the same way people leave alcohol and drugs behind as they age. Because they realize the negative impact that it has on their lives. All the glib talking points in the world, and all the thrown pies can’t change that reality. And maybe they want to make real babies, with a real lover, instead of with test-tubes, turkey basters, and electron scanning microscopes.
The Gaystapo movement will continue to find new grievances. They have to to stay in business and pay the bills. They will complain because sodomy, fellatio, and fisting aren’t being taught in Sex-Ed classes. Which they are already trying to do. The Gaystapo will make major moves on young people who have sexual confusion, to bring them into gay support groups, when research shows 75% of such people resolve the issue and become heterosexuals. But hey, you know low hanging fruit is the kind to go after!
Meanwhile, many, if not most,straights will be a little more angry at the gays, and withdraw more from the whole mess. At some point the gays will come to that point where Blacks are about at now, that 60 years after the Brown vs. Board of Education, they have gone backwards on education. Gays will find out just like them, whether it is 60 years or give and take a few years, that REAL reality trumps POLITICAL reality every time. It just takes a while for it to sink in.
So here’s the REAL reality. Gays are responsible for their own happiness and unhappiness, Wherever they find themselves, good or bad, it isn’t heterosexuals who are responsible – – – it’s them.
Squeeky Fromm
Girl Reporter
Please see my recent comment down on the Sister Wives article.
“But what is difficult for a foreigner to understand is why major/democratic issues in the United States have to be settled in court rather than through the ballot box?”
NP,
Because normal cultural transformation can take generations and our administrative (central planning) state does not want to wait for the American citizen to come around to their idea of what the world should look like.
I understand.
But changing society in this way – is it really democracy?
I thought that was government of the people by the people.
Not government by the judiciary.
So you can see why I’m puzzled.
Excellent inside view of the proceedings. Was Thomas and Scalia able to maintain composure?
What is your thought of Thomas’s decision, which included words “that slaves didn’t lose their dignity.” Pretty harsh and unusual for Thomas to even write, much less the choice of words.
Now that they have gained their ‘equality under the law’ let’s see if they have any respect for the natural right of conscience protected in the 1st amendment.
In the case cited above, West Virginia Board of Education v. Barnette, the Court held that
“‘Compulsory unification of opinion’ was doomed to failure and was antithetical to First Amendment values.”
Isn’t this decision mandating the same thing, “compulsory unification of opinion”?
And from the same case:
“Writing for the majority, Justice Jackson argued that ‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.'”
“No official, high or petty…”
even the Supreme Court
“…can prescribe what shall be orthodox…”
what is generally or traditionally accepted as right or true (Oxford Dictionaries)
“…in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act…”
by baking a cake, photographing, supplying the venue, or performing a same-sex marriage
“…their faith therein.”
The was very good reporting by someone who was there in the room and a very good analysis of that which went down.
The Majority, and I employ a capital M for Majority, has found that the right to marry is a fundamental constitutional right. The decision by Kennedy opines that the marriage concept and place in life has evolved from a situation where a wife is obtained as almost a publically traded commodity to a situation where two humans who love each other decide to spend the rest of their lives together and perhaps have children or adopt children. Love is the central notion. Not love of money or the subversion of the woman’s right. Now all that I just articulated was not exactly spelled out by Kennedy as I just said. But read the opinion folks. It is very good. Cara did a very good job describing the Court, the crowd and the result. Roberts got weird. Two days ago we were celebrating the fact that he had risen from the collection of house urdTays on the right up on the bench who were politically motivated to oppose what they call ObamaCare. Roberts is an odd duck.
The times, they are a changing. It used to be that a man went out and had to bargain for a wife and perhaps pay money to her family. Then it evolved in most of America to more focus on love between the two people but one had to be male and the other female. In recent years the male and male thing and the female and female human thing has gained acceptance. The next step folks is whether a male dog can marry a female human and have that relationship recognized by any state and down the road all fifty. HumpinDog and Betty Lou Thelma Liz are hopeful. Yes, Betty Lou Thelma Liz had to buy HumpinDog along the way here. Just like your grandpa had to buy grandma from her parents. But this is not a transactional arrangement. It was love at first sight. HumpinDog can give Betty Lou Thelma Liz some guidance in life as he was put on God’s Earth to do. Please open your hearts and minds dear readers.
Semantic change/ shift / progression / drift describes the evolution of word usage — usually to the point that the modern meaning is radically different from the original usage.
Gay: Originally meant (13th century) “lighthearted”, “joyous” or (14th century) “bright and showy”, it also came to mean “happy”; it acquired connotations of immorality as early as 1637, either sexual e.g., gay woman “prostitute”, gay man “womanizer”, gay house “brothel”, or otherwise, e.g., gay dog “over-indulgent man” and gay deceiver “deceitful and lecherous”. In the United States by 1897 the expression gay cat referred to a hobo, especially a younger hobo in the company of an older one; by 1935, it was used in prison slang for a homosexual boy; and by 1951 and clipped to gay, referred to homosexuals.
I had always believed that use of word GAY as in homosexual/lesbian nomenclature came from the phrase “Good As You” but I may be wrong?
The definition of marriage varies according to different cultures, and it would appear that this legal ruling has changed the legal definition of “marriage” in the United States.
So if “marriage” is now “marriage” it seems odd to further define the union by reasons of sex and I would suggest that the qualification of the noun with adjectives of sexual orientation is unwarranted, as this would defeat the object of its equitable recognition for Gay and Lesbian Union?
“Marriage” has now demonstrated a semantic change, at least in the United States.
But what is difficult for a foreigner to understand is why major/democratic issues in the United States have to be settled in court rather than through the ballot box?
Cara, wonderful synopsis, thank you! Yesterday love won. What a thrill to have been there, lucky you!
Well, I am happy to hear that SOMEONE (the majority) was thinking about the children already living in same-sex households. And it makes me wonder if Roberts feels the same way about desegregation, that blacks “…lost the opportunity forever to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.” When you win a Supreme Court case, haven’ t you in no small measure persuaded fellow citizens of the justice of your cause?
The right decision for all citizens who are, or were once part of a minority. We are all equal or none of us are.
” smiles and quiet tears”. Sure: the road to self-destruction of the Western civilization has just widened by another foot.
It was indeed a sad day for marriage, the Constitution and the USA!