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.
Paul C. Schulte
1, June 27, 2015 at 11:42 am
Jill – I have a very good lesbian friend who has been through several abusive lesbian relationships until she finally found this partner. This is just going to double the marriage and divorce rate.
—————–
Paul, I am a bi-sexual women… MOST of my straight relationships were with abusive men,
I am sorry, but when you said is just BS.
I am also on my second marriage, my first husband tried to kill me.
So, to make that a gay issue is just bullocks.
justagurl – I am not making it a gay issue. I think you misread my comments or I did not give enough detail. I was trying to make the point the LGTB marriage will have the same problems that straight marriages will. You have a problem with that?
Oh, and by the way.. I don’t even act like the normal person.
I don’t believe in being normal, that is just too boring for my blood. 🙂
Jill, VERY well said.
Fantastic article!!!!
Wonderful ruling!!!
For those who wonder what gay people act like when they are treated equally,
they act like normal people.
I don’t know how to put this in a PC fashion, but, I will just say what I believe.
I grew up around Queen Type gays.. The very Swishy kind. Oh, I love them…
they are better than girlfriends and fun as all hell.
When I moved to Sweden, I did not see any of these Queen type gay men.
I would see 2 nicely dressed men at the market, NOT hip swishing, no wrist bending,
just 2 men who look like they work together or maybe they are having a boys night out?
Nope, they are a couple, buying dinner together.
I went to the Gay Pride Festival, I looked for the queen type gay men, and NOPE, they
are just your run of the mill, look like every other man in Sweden.
I met ONE queen type gay man, he was from New York, he was visiting for Gay Pride week,
and he too was shocked that the gays were not like American Gay men.
I asked a few gay men, why there were no queen type gay men in Sweden.
They felt it might be that because Swedish gays were treated so equal, there was no
need to act different than other people.
All I know from this is that I am VERY Happy about this ruling.
It is about time that gay people be treated equally under the law.
Publicly or civilly, the court stated that gays have the same civil rights as heterosexual regarding marriages. This includes taxation, inheritance benefits, next of kin issues, as well as public commerce.
I’ll post a bit of what I wrote on another thread since it is pertinent to your comment.
“Too bad I’m not still in my business [financial planning and investments]. I can see a booming market in arranging the finances, setting up trusts, protecting the assets, tax strategies etc for the newly married and the about to be divorced. I would be more than happy to take on those clients!!!! Actually, some of my best clients back in the day were same sex couples who needed to be very careful about their finances and inheritances since they were not covered under the same State and Federal rules as hetero marrieds.
You all do realize that this ruling by the Supremes doesn’t yet change anything in the IRS, Social Security or other tax areas. Those behemoth agencies will need to slowly turn and change their codes. It will be like turning the Queen Mary…..takes time. Looking forward to when THAT realization sinks in to the numbskulls of all those who are doing a happy dance right now.”
It will take a great deal of time to change the tax codes for income taxes, estate taxes and inheritance issues. The Federal codes and EACH State’s inheritance taxation codes. The mere passing of the Supreme Court decision hasn’t really changed much of anything other than it is legal to get married. So what?
BTW: Alabama has decided to get completely OUT of the marriage business.
I like Olly’s argument at 10:10 a.m. above.
This escalates to office of Yahweh. He just shake highest mountain on earth, Mt. Everest. Now LBGT shake fist at Yahweh and mash teeth and mock him.
Olly, morals don’t come from religion. I am not the least a “religious” person. I believe my morals, which I have learned as a part of life, are just fine. peopke have behaved immorally in the name of “religion” for centuries. Just ask blacks.
Oh, many founding fathers were deists. Go figure.
Marco – many of the Founding Fathers were Freemason’s. Go figure.
There has been, is, and will continue to be overlaps between state’s rights and federal rights. This is the history of the US. It touches upon: slavery, voting, education, legal aspects of marriage, and many other civil as well as private issues, as the realm of the private and the public overlap. The two areas of contention seem to be legal interpretations of items such as the powers of the different branches, the Constitution, and other documents that were developed over the centuries, and one’s point of view on the issue.
Given that most of the elements that Americans hold sacred and immoveable retain enough ambiguity that they can be, in many cases, interpreted to the left or the right, it is understandable that when the left gains the right will cite a defamation of holy orders, and vice versa.
What is missing from the American system, that appears in most other governments of our peer nations, is an ability to evolve the way the different parts interact. Marriage is a personal thing and a public thing. That which makes it personal should not be affected by this ruling or perhaps the complaining party should address their problem. Publicly or civilly, the court stated that gays have the same civil rights as heterosexual regarding marriages. This includes taxation, inheritance benefits, next of kin issues, as well as public commerce. No private religious order should be compelled to perform or recognize a gay marriage. However a cake baker who is performing their trade in public is obligated to treat gays to the same level as any other customer. A mortgage broker is obligated to treat the couple to their combined advantage. If the cake baker does not like gays then they should practice their trade within the confines and dictates of a private arrangement with customers, in other words not ‘open for business’ with all the benefits of a public enterprise.
So, either those complaining are threatened and feel their marriages denigrated by gay marriage or it’s a simple case of sour grapes. In the first case that is a private issue. In the second case it comes with the territory. In any case it is a good thing, these past few days.
Jill, you nailed it. Kudos.
“”Human sacrifice. Dogs and cats living together. Mass hysteria.”
Congratulations to all the people who gained recognition of their love for one another.
Squeeky,
Surely what you describe isn’t anything homosexual males have a lock on! You can believe that heterosexual men and women will and have screwed up in their marriages in every possible way. Any person, of any gender orientation can be abusive, cruel, impulsive and spread HIV.
I know many members of the LBGT community and count myself among them. We are people, that is all. We don’t need a cure for who we are. Like any exclusively heterosexual person, we can mess up. But to say that we are incapable of real love is simply a lie. Love doesn’t have a gender. Love is an act of profound kindness, joy and compassion. Be that act.
Jill – I have a very good lesbian friend who has been through several abusive lesbian relationships until she finally found this partner. This is just going to double the marriage and divorce rate.
To Olly
Well this is an eyeopener…..
But Democracy is an evolving process it doesn’t exist just because you say it does and because you have a Constitution and Bill of Rights.
Hopefully it will develop and flourish.
At least you have some insight and that means that the concept is not necessarily a lost cause.
But manipulation of the majority will by a minority (whatever that might be) needs to be recognised when it happens and addressed.
And remember
Democracy – Responsibility = Anarchy
“Could not democracy be over-ruled by edict?”
NP,
You are witness to it. This is the nature of progressivism where the people have ignorantly supplied the central government with the power once secured to the states and to the people. First the 17th amendment stripped the states of their legitimate voice in Congress and then Congress stripped the people of their legitimate voice by ceding authority to the Executive. Our last remaining vestige for just government (Judiciary) has become a remedy for an inept Legislative branch and by extension the Executive branch.
Our ‘Bill’ of Rights has been turned into a debt the People owe the State and the State will collect on whatever they believe is a ‘just’ cause.
Cara
Thanks for an eloquent description of what it was like to be there when the decision was announced.
“We’d be South Carolina – X10.”
Old Nurse,
I’m not surprised that you’ve completely missed the fact South Carolina hasn’t succumbed to the race-baiters desire for a race war. You won’t find it reported in the MSM but South Carolina has proven they won’t let one 21 year old racist define them.
We can only pray that the rest of the country would be “South Carolina – X10.”
Your right Marco in that religion is not necessary to the existence of natural rights. However, it is in the absence of religion that we lose the opportunity for a culture to be bound to moral absolutes that can provide increased security of those rights. We are living in times where everything is relative to the will of a people unguided by any unifying moral constraints which leave us exposed to the impulsive will of man. This is where religion has a purpose that benefits society as a whole and this is a well-documented philosophy of our founding fathers.
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.”
Thanks for this savvy comment – yours, not Roberts’!
Fifty years after the civil rights movement and their victories, blacks have yet to win that true acceptance in many places and in many people’s hearts and minds. Imagine if we hadn’t had the civil rights movement and decisions, both legislative and judicial. We’d be South Carolina – X10. Gays will face the same challenges ahead. Slowly, though, some minds and hearts will change and those stories will be the best of all.
Victory for LBGT. NYC gay pride parade Sunday 6/28/15. Check out the gloating at:
http://joemygod.blogspot.com/
Vic, thankfully religion has nothing to do with civil rights. The founding g fathers saw to that!
Although I support same-sex marriage, I think the minority was correct and the decision should have been left to the states. The federal government is spending way too much time interfering in our (my) life.