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

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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”

  2. @NickS

    A poem??? Ok, here is one which may be the REAL reason behind the SCOTUS decision:

    Case In Brief???
    An Irish Poem by Squeeky Fromm

    Said the Court in respect to same-sex,
    We don’t care who our ruling affects!
    Cause that guy in his briefs,
    Has changed our beliefs!
    And My God! Would you look at those pecs!

    Squeeky Fromm
    Girl Reporter

  3. We can only pray that the rest of the country would be “South Carolina – X10.”

    Have you ever BEEN to South Carolina? The first time I was there in 1984, I thought it was 1844. It was scary stuff. The last time I was there was ten years ago. It was still scary [I was on a tour of an old plantation in Georgetown and the tour guide’s entire narrative sounded like an 1850 slave owner; they could have updated it by at least a few decades! ]. Maybe it’s gotten much better in the last ten years.

    Just because whites and blacks came together after this racist hate crime doesn’t mean all is well in the Palmetto State.

  4. Squeeky,

    You are difficult for me to follow in your argument. I can understand speaking out against cruel behavior. It also seems reasonable to explain the consequences of reckless behavior. But you seem to believe cruel and reckless behavior is the provenance of gay men. That belief just doesn’t mesh with reality.

    It’s so strange to me that the way you see gay men is exclusively as guys having multiple partners and meeting in bathrooms. No doubt this occurs. Just so, JT is arguing for the legality of multiple wives of heterosexual men. We therefore cannot honestly claim that only certain homosexuals want multiple sexual partners.

    We are also able to read about heterosexual hook-ups in bathrooms. t’s as if you simply refuse to look at heterosexual behavior. Are you upset about the behavior no matter who is doing it or are you just upset if it is done by homosexual males?

    I know many homosexual men. I know men who’ve been together 40 some years. These are people who love each other, who have taken care of each other in really rough times. I just don’t see how that is wrong or why it bothers you. And if multiple partners and bathroom hookups are something you speak out against, doesn’t it make sense to speak against them in any context, not just among gay men?

    To me, there are important things we need to take care of. Some of those things would be stopping rape of any person and protecting children from harm. (The person most likely to molest a child is a married, heterosexual male.) Standing up for victims of abuse by the powerful is another important duty we owe one another. I would even say that we should worry about the increasing level of S and M practiced by many people of all different genders in our society. The willingness to harm others and be harmed ourself is something our culture needs to examine. But none of these important issues is dependent on being gay or straight.

    My feeling is this: where there is love and kindness, this is always a good thing. Where there is cruelty and injustice, that is always bad. Humans come in five sexes. Let’s be glad when any person of those five sexes is loving towards another.

  5. Annie, of COURSE we have the Gay Pride Events… 😀
    and the Gay Pride Parade they will dress more like they would in the USA at the Parade..

    However, where you will see Gay men like in those photos dressed in very little at Gay Bars in
    the USA, here you will NOT see that in a Gay Bar in Sweden.
    You walk into a Gay bar in Sweden, and you will not see a difference at all.
    It just looks like a regular bar.
    I have been in gay bars most of my life, in Seattle, (EVERY gay bar in Seattle) In Vegas, in Sacramento…
    IN Sweden, in Amsterdam.. and Sweden is far different than any other country.
    If you met the Gay men I know here in Sweden, you would not know they were gay.

    By the way, Do you know how many people from around the world come to the Gay Pride in Sweden?
    For all you know, those guys in the photo are from Norway, or even possibly America… 😀

    By the way, I go to the Swedish Gay Pride Fest EVERY year, if I am in town.

  7. Jakeandcrew

    The only irrefutable evidence regarding Jesus is that he did some serious sh*t disturbing at the stated time and was crucified. All the rest has been fabricated, massaged, and rewritten to suit the unity of the organization called Christianity and streamline the myth. You can believe if you wish. It is a free country. However, history illustrates that Mary was a regular old mother, one of many who gave birth to a revolutionary type. There was an unending stream of zealots and critics that travelled from town to town and typically got waxed when they came to a city with an already established and wary religious organization, in this case the local Roman garrison and the local priests. Later to deify Jesus and clarify god, Mary became a virgin.

    The fact that he existed is minuscule compared to the creation of the myth. John the Baptist might just have easily been the one chosen to immortalize. Of course that decision would have been made before he became part of the Jesus myth.

    It’s a great story and way way down the line at the essence it holds some of the secrets of living together. You can select the wise parts and park the rest but altogether it is nothing more than an instrument of power.

    Given all the instruments of power mankind comes up with, it has its advantages in that it doesn’t depend on the corporeal existence of a Napoleon or other benevolent dictator but it is only a stepping stone in the evolution of man’s controlling man.

    1. issac – a good course in the history of the origins of the Catholic Church would show you that 95% of what you have written is dead wrong. Even Monty Python had a better take on Jesus than you do.

  8. Lisa is on the other thread posting pictures, one is a young woman and a dog French kissing. I guess she doesn’t know about this thread yet, lol.

  9. This topic is getting to be a bit much here in the dogpac. We have two female dogs named Floppy and Moppy and they want to get married. Jeso. Its coincided with HumpinDog no longer humping either one of them. Gosh where is this all headed?

  10. Within the political class of the US, supporters can claim victory and opponents can wash their hands of the matter by declaring the SCOTUS ended the debate. Both can benefit/save face.

    To me the constitutional issues favoring gay marriage are self evident. But without trying to diminish the significance of this historic ruling and the elation most are experiencing I still hope the political class will move on to other issues needing attention. I further hope these will not include the next drive to marginalize another segment of our society. But, we have to be realistic about what many politicians are unfortunately adept in accomplishing.

  12. I took my 12 mile walk around Lake Monona today. I counted 5 Bernie t-shirts. He’s coming to Madison on Wed. I may go hear his stump speech. Hillary needs to FINALLY come out of the closet. I see her being outed by gay groups soon if she doesn’t.

  14. Again with the projection. Some people are so mired in their own pathology, they see their own pathology in everyone else. Classic symptoms. It’s not too late to seek treatment.

  15. I hope Lisa joins in today. She’s a sharp, substantive woman as well. Lisa and JAG are opposites politically, but they both are strong women who believe in personal responsibility, hard work, and taking care of themselves.

  16. There are some great comments here. JAG always is interesting and substantive. Then there’s 5th grade show and tell photos.

  17. Squeek, Middle School is in session again today. Pathological.

  19. This will occur to the baker near you. Having operated a small biz for 30 years, I turned down business for all types of reasons. The biggest reason for me, and most businesses, I was swamped. When you are good @ what you do, many people want to hire you. When I turned down the case, and over my career I turned down well over a thousand, maybe two thousand, I would sometimes give a reason, often not. I would simply respectfully decline, in person, over the phone, or in writing. Other reasons for turning down a case were, I didn’t like to take the type of work requested or just didn’t do that type investigation. I didn’t want to travel the distance required to do the work. I had a conflict. The person was an a-hole. There are other reasons, but those cover the vast majority.

    I’m quite certain this scenario has already occurred and it will grow in numbers exponentially now. A baker, Angelo, is a nice guy you may know. He is not a political type. Bakers are HARD WORKING people and most don’t have time for politics. Angelo is not religious, doesn’t go to church. Sunday is his one morning he can sleep in. This nice man is a “to each their own” man. He has a gay nephew, gay neighbors, and has no problems. A gay couple come in and request he do their wedding cake. Wedding cakes cannot be done weeks or days in advance. This nice, hard working baker is swamped. Like I respectfully declined innumerable cases, Angelo tells this gay couple he can’t take their order, he has 5 other weddings that day and that is his absolute maximum. It’s just he and his wife. “DISCRIMINATION” the entitled couple scream.

    Angelo has 2 choices. He can stick to THE THRUTH, he is too busy to take their order and the couple contact an attorney, the local newspaper, and local TV. The story goes viral and Angelo is getting threats and vile comments about him made on blogs. Angelo hires an attorney. But, his reputation is harmed. Angelo wins in court but of course the jury and judge can’t get Angelo his reputation or lost business back.

    Angelo’s second choice is this. He does not want the aforementioned nightmarish scenario. So, Angelo calls a hetero couple. He tells them he made an error when he took their order and has to turn it down. He apologizes profusely and offers to help find them a good baker and will pay any difference in cost. The hetero couple are disappointed. They don’t know the REAL reason for this. But, like Angelo, they are good folks and find another baker.

    Early in my career I worked a housing discrimination case. I was hired by an attorney who represented an apartment building owner. This was a 16 unit building, IIRC. The owners were a couple who worked full time and ran this building on their own. They were sued by a black woman who claimed she was discriminated against when she applied to rent an apartment. She had horrible references, was unemployed, and had 3 kids for this 2 BR apt. It was a short, two day trial in Federal Court. The jury was out 2 hours and found for our client, saying there was no discrimination. I know the bailiff. He said it only took 2 hours because the jury wanted to eat lunch. They probably needed less than an hour. This hard working apartment building owner spent at least 15k defending this suit. When you create protected classes, there are horrible injustices.

  20. @Ninian

    You said, “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. ”

    Sure we can have it both ways! Haven’t you ever heard of the Copenhagen Interpretation of Quantum Physics???

    A foolish consistency is the hobgoblin of little minds! (Ralph Waldo Thoreau or somebody like that???)

    Squeeky Fromm
    Girl Reporter

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