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.
Just trying to shed the light of reality Squeeky, you’re welcome.
Again, for the learning impaired, be as gay as you want just do not expect everyone to accept and most importantly do not infringe the natural right to not endorse it.
@justagirl
Annie has provided pictures. Sooo, if they are genuine, then I don’t believe you anymore about the gays in Sweden.
(See people! That is what REASONABLE people do. They change their minds when new facts come to light!)
Squeeky Fromm
Very Reasonable Girl Reporter
http://www.nydailynews.com/news/world/topless-femen-activists-enter-russian-embassy-sweden-protest-anti-gay-efforts-article-1.1414502
“In your face” protests in Sweden.
http://assets.nydailynews.com/polopoly_fs/1.1414500!/img/httpImage/image.jpg_gen/derivatives/article_970/521799267.jpg
http://www.civilrightsdefenders.org/files/Stolta-föräldrar-Pride-2012-e1375103695821.jpg
How dare these Swedish people protest in support of LGBT?!
OMG, Swedish gay people strutting their “stuff”.
http://i.huffpost.com/gen/1282183/images/o-STOCKHOLM-GAY-PRIDE-2013-facebook.jpg
Yes – courts should interpret the law but it’s not convincing that this is what is really happening, despite statements by some to the contrary.
It seems that the Constitution and Bill of Rights is used when it is expedient and ignored at other times. You can’t have it both ways. You either have a Constitution and Bill of Rights or you don’t.
Whilst judgment may be the right thing on the basis of a single case, this does necessarily compute for all cases. And what if such judgment brings about unconstitutional consequences?
How was McCarthyism compatible with Constitution / Bill of Rights? Wasn’t it really McCarthyism that was Un-American?
Changes in the law reflect changes in the attitude of society and it is clear the Constitution / Bill of Rights is manipulated by all sides support all arguments. And if something doesn’t fit it is ignored.
@justagirl
You have perfectly encapsulated what I was talking about earlier. By your logic, drug addicts are drug addicts because we stigmatize drug addicts. Serial killers are serial killers because we stigmatize serial killers.No, we stigmatize these people for the things they do, and the way they act.
Gay Johnny isn’t on his knees giving oral pleasure to strangers in a public restroom because he is stigmatized. He is stigmatized because he is the kind of person who will get on his knees in a public restroom, and give oral pleasure to strangers.
That is what I said above. What personal realization do gays have to come to when they can’t blame stigmatization anymore??? Because it was never the stigmatization in the first place- it was their behavior. My goodness, look at any Gay Pride Parade. You have clowns in leather chaps with feathers sticking out of their butts prissing around with signs that read–“We Are Just Like You!” Yeah. Sure you are.
There not a gay couple in the country over the last 75 years that could not have set up house together, and stayed together as a couple, with nearly every benefit of marriage available to them. There are such things as WILLS, and joint right of survivorship agreements. Yet, very few gay men ever did it. Because they are in it for the sex, and after a while the new wears off. To blame their promiscuity on other people is a cop out. Sooo, as I said above, what happens when the excuses don’t work anymore???
I believe you on Sweden. Because Europeans are more mature than Americans, and act better. If gays in this country had been more mature, acted like adults, and not gone around throwing pies, and strutting their weirdness in parades, and not gone live with silly and hysterical rants, and just gone to the damn men’s room instead of trying to get into the ladies bath room, and stopped killing the crap out of themselves with drugs and HIV/AIDS, maybe they would have gotten some respect much earlier from many people.
But this being America, I don’t look for the pro-gay people to stop their enabling behavior. Because to them, Gay Johnny just has to be excused for being on his knees, in a public restroom, giving oral pleasure. to strangers . . .because that’s Heterosexual America’s fault! Sure.
Squeeky Fromm
Girl Reporter
This should not ever been a SC issue. It should have been left to the states, but once again, like Roe v. Wade, things have spiraled out of control. Where do we go from here? Will the Gay Communities have stopped with their demands? I think not. They will continue to push forward and inundate all lives with their agendas.
I see Private and Christian universities being forced to have private housing for gay couples, more gay events and gay organizations–even though it may be against their faith or school policies. I see businesses losing their rights to serve whomever they want, because of their moral beliefs. I see churches being forced to perform gay marriages against their religious beliefs. I see more information being drummed into kids heads about the gay lifestyle during sex ed. classes. I see gay rights being taught on the same level and comparison as black slavery rights during Social Studies. I see special sexual orientation classes and counsel for young students. I see more social confusion among kids brought up by heterosexual couples vs. gay couples. I see more movies, television and music drumming into the publics skulls about how wonderful homosexuality is and forcing people to accept it or be called homophobic. I see a portion of the homosexual community out to destroy people who are of various faith beliefs. I see more homosexuals going to court and suing businesses for not hiring them, claiming discrimination. The same will be true for schools and universities.
Many will say that this will never happen. I say it is possible. Oh wait, it’s already happening!
Our world has become less moral, and certainly more complicated. Welcome to Sodom and Gomorrah.
“Some of us are busy evolving to a higher form.”
I wish you guys would hurry up then because we do not have all the time in the world to wait for you to finally realize human nature will never evolve. Once you finish regressing back to the Dark Ages and move back into the Age of Enlightenment then we’ll have real progress. We look forward to your arrival.
learned
Stick to poetry. Your new moniker is ‘Chicken Little’.
@Isaac
Bullsh*t!!! You said, “Like the girl in Sweden said, it’s no big deal. It’s only a big deal to those who feel threatened by it. ”
This is America, and we tend to politicize every thing that moves and crawls upon the face of the Earth! We have the Gaystapo, who will guarantee that what happens in their bedrooms, will not stay in their bedrooms. Just watch. All the stupid, hetero-normative BS will become the new rage! Little Brad and Janet, who don’t give a hoot what Johnny and Bruce do in their bedrooms, will have to take notice when their kids come home with Sodomy instruction book from their Sex-ED Class. Toys R Us will have to change labeling toys as “boys” and “girls” or they will be called homophobic, or even worse—heteronormative!
And, gays and stupid non-gays will get emails, phone calls and solicitation letters to contribute to the end of all the Hetero-normative Fascism!
Just wait and see! If you are honest, sometime in the future, you will come crawling back on your hands and knees, whimpering and cringing, saying, “Squeeky, I was sooo wrong! The Gaystapo has labeled my 6 year grandson a gay youth, and they have taken him away to a special class room where he can be around other gay children! And they sent my 15 year old grandson home with a Gay Sex Manual! Oh pleeeeaasseee forgive me for being such a total dumba$$! And I don’t get a tax deduction for my tithe to the Catholic Church! Oh, you were right! Life sucks under the Gaystapo!”
Squeeky Fromm
Girl Reporter
Squeeky – in the olden days we learn about gays the old fashioned way, in the Boy Scouts, during camp. And you clearly are not tithing enough. 🙂
Squeeky,
Fact is, it is far worse in the USA for Gays than in much of Europe, where they are
not treated as poorly, and do not have as much to fear, so they are not killing themselves
they are NOT getting STD’s at record numbers, they are just normal human being living
their lives and not being treated as scum, and as outsiders like they are in America.
In Sweden, a parent does NOT have the right to kick their child out of the home
because the child is gay. This is an all too common occurrence in America.
Gay’s don’t face the same fears in Northern Europe, as they do in America
so they don’t have the amount of suicides as they do in the USA.
The fact that the USA has far more Christians who use their bible to justify treating others
in an unjust manner.
The suicide rate among gay people is higher, due to Religion and them being told that they are wrong, and that they are no good. They experience far more distress when confronting their families, since they
believe that their families will disown them.
I know that if I had been told my whole life that I was wrong and that I was screwed up,
that I might not have such high self esteem. Thankfully, I was not treated that way even when I brought women home that I was dating.
My Uncle however, who was gay, was BEATEN by my grandmother and put into many mental
institutions. They wanted to CURE him of being gay.
Of course he tried to kill himself after that. Who wouldn’t?
My mother / his sister took him in at 16 when she heard what my grandmother was doing to him.
justa,
I can show you a poll that shows 100% of Americans oppose gay marriage; none of it really matters until you put it to a national vote though.
Actually Congress really is representative of the People; both in constitutional architecture and practice. This was articulated best by Garfield:
“Now more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature … If the next centennial does not find us a great nation…it will be because those who represent the enterprise, the culture, and the morality of the nation do not aid in controlling the political forces.” – James Garfield 1877
But of course let’s keep ignoring history because they were just old, angry white guys and we have progressed passed all that nonsense.
jakeandcrew
It is important to understand and remember that the bible/new testament was written and rewritten many, many, many years after the death of Jesus. The origin of Jesus and his family changed from him having a brother(s) which meant that Mary was not a virgin to him being an only child, allowing the myth of the Virgin Mary to give supernatural credibility to the story.
The story was scripted by those who first founded the organization we now know as Christianity and revise time after time. Whether Jesus was part of a blood line of kings and all that that might have to do with polygamy or monogamy is virtually meaningless, outside of the myth, or in reality.
The main issue regarding marriage where society has evolved has been focused on ownership and civil rights. Go back far enough and a woman’s plight was pretty dim if she did not get married and stay married. Civil rights has changed that. This transition has tempered the sanctity of marriage in some ways but perhaps made marriage more sacred in others. A girl marrying an older rich man and becoming his property may seem holy and sacred when done in a church but in humanistic terms it is deplorable.
A man and a woman living together in harmony, raising children responsibly, and creating wealth without adhering to any religious mumbo jumbo may appear as ‘not correct’ but in fact it is more correct and beneficial than most ‘religious marriages’. Divorce is not a dirty word but simply the term applied to a decision by two people who wish to move on but away from each other. Now, people of the same sex who have no choice in the matter can evolve along with the rest of the world.
I a person finds value in traditional marriage, complete with religious ritual, and sacred in their own way, then keep it to yourself. Some of us are busy evolving to a higher form.
issac,
There is strong evidence that John’s gospel was the last of the four gospels written, around 85 AD. Jesus was crucified sometime around 30 AD. That’s less than a hundred years from His death to the completion of all four accounts.
The gospels clearly state that Jesus had brothers and sisters. Joseph and Mary had a normal marriage after Jesus was born, and had other children. He was the oldest child, but certainly not the only child. Jesus was God’s Son, His mother was Mary. The other children were Joseph and Mary’s sons and daughters.
The story was scripted by God in His word, and has not changed. Christianity is not an organization, it is a relationship with Jesus Christ.
Marriage is much more than a right, and goes much farther back in history than this country and its Constitution.
Five justices on the Supreme Court, five men and women, cannot change what marriage is. They have greatly over-reached their authority.
Isaac,
Deny as you might, rights created by the State do not trump natural rights. The power granted to the State by the People is the very power used by the courts to grant SSM.
If you want to argue that any business can be forced to violate their 1st amendment rights then you will lay bare the real agenda behind the leaders of this movement. There are those in the LGBT community that only sought equal protection of the law for their union and then there are those that have used that community to work against our capitalist system. If it were that people just want to have a wedding cake then either find a business that will make it or fill the void yourself. But to force any business to conduct it’s affairs against its will is nothing but totalitarianism and should be rejected by EVERYONE in a free society.
Congress is the Representative of the People.
———-
that is total BS.. and I mean that wholeheartedly.
How can it be, when it is Gerrymandered beyond recognition?
Democrats and Republicans who get into office care only about the power,
NOT the people.
and fact is, over 60% of Americans support Gay Marriage. So, the people do support
this. This is a majority who support Gay Marriage.
JamesR, you are nuttier than a fruitcake. “Minority rule” is delusional psychosis. Yours.
Liars fear a vote of the People.
Infinite convoluted argument by radical extremist special interest groups
shall not prevail over a vote of the People.
It is not for the judicial branch to determine whether abnormal anomalies of nature are normal.
A vote of the People, the Sovereign, is the only authority that can make that decision under the American
Thesis and founding documents.
The Founders ended the tyranny and oppression of the monarchy.
They did not impose the “dictatorship of the proletariat” or the totalitarianism of the freaks of nature and radicals.
The only rational and coherent course of action is to decide by a vote of the People.
Congress is the Representative of the People.
Liars fear a vote of the People.