759 Jewish Judges (3 of 5) bring Gay Marriage to America

Jewish Judges (3 of 5) bring Gay Marriage to America

Chief Justice Roberts says 5 judges stole this issue from the people.
Justice Scalia calls it a Judicial Putsch

Newsletter published on 28 June 2015

(1) 5-4 vote for Gay Marriage welcomed by UN's Ban Ki-moon as step
forward for human rights
(2) Of the 5 judges who voted for Gay Marriage, 3 are Jewish
(3) How the 9 Judges Voted - from The Atlantic
(4) Excerpts From the Supreme Court Majority Opinion
(5) Dissenting Opinion: Chief Justice Roberts refers to the universality
of Man-Woman marriage in other cultures
(6) Dissenting Opinion: Scalia calls it a "judicial Putsch"
(7) Roberts "wrong about marriage practices of Kalahari Bushmen, Han
Chinese, Carthaginians, Aztecs"
(8) On Gay Marriage, John Roberts Invokes … the Aztecs?
(9) NYT editorial: A Profound Ruling Delivers Justice on Gay Marriage

(1) 5-4 vote for Gay Marriage welcomed by UN's Ban Ki-moon as step
forward for human rights

http://www.abc.net.au/news/2015-06-27/us-supreme-court-rules-in-favor-of-gay-marriage-nationwide/6577294

US Supreme Court rules in favour of same-sex marriage nationwide in win
for gay rights movement

The Supreme Court has ruled the US Constitution provides same-sex
couples the right to marry in a historic triumph for the American gay
rights movement.

The court ruled 5-4 that the Constitution's guarantees of due process
and equal protection under the law mean that states cannot ban same-sex
marriages.

With the ruling, gay marriage will become legal in all 50 states.

Justice Anthony Kennedy, writing on behalf of the court, said the hope
of gay people intending to marry "is not to be condemned to live in
loneliness, excluded from one of civilization's oldest institutions".

"They ask for equal dignity in the eyes of the law. The Constitution
grants them that right," the statement said.

Justice Kennedy, a conservative who often casts the deciding vote in
close cases, was joined in the majority by the court's four liberal
justices.

There are currently 13 state bans in place, while another state,
Alabama, has contested a court ruling that lifted the ban there.

President Barack Obama, in heartfelt remarks, praised the ruling as "a
victory for America".

"Today we can say, in no uncertain terms, that we've made our union a
little more perfect," he said at the White House, which changed its
Twitter avatar to the rainbow colours of the growing gay rights movement.

"This decision affirms what millions of Americans already believe in
their hearts: when all Americans are treated as equal, we are all more
free."

The ruling is the Supreme Court's most important expansion of marriage
rights in the US since its landmark 1967 ruling in the case Loving vs
Virginia that struck down state laws barring interracial marriages.

In a dissenting opinion, conservative Justice Antonin Scalia said the
court's decision was a "threat to American democracy".

"[The ruling] says that my ruler, and the ruler of 320 million Americans
coast-to-coast, is a majority of the nine lawyers on the Supreme Court,"
he said.

Conservative Chief Justice John Roberts also read a summary of his
dissenting opinion from the bench.

The decision follows rapid changes in attitudes and policies toward gay
marriage in America. It was not until 2003 that the Supreme Court threw
out state laws banning gay sex.

In 2004, Massachusetts became the first state to legalise same-sex
marriage. [...]

United Nations secretary-general Ban Ki-moon welcomed the ruling as "a
great step forward for human rights."

Gay marriage gaining acceptance in Western countries

Last month in Ireland, voters backed same-sex marriage by a landslide in
a referendum that marked a dramatic social shift in the traditionally
Roman Catholic country.

Ireland followed several Western European countries, including Britain,
France and Spain in allowing gay marriage, which is also legal in South
Africa, Brazil and Canada. But homosexuality remains taboo and often
illegal in many parts of Africa and Asia.

The Supreme Court's ruling came in a consolidated case, pulling together
challenges filed by same-sex couples to gay marriage bans in Kentucky,
Michigan, Ohio and Tennessee.

Same-sex marriage was legal in 36 states and Washington, DC. In a 37th,
Alabama, a federal court struck down the gay-marriage ban, but the state
supreme court has stopped local officials from issuing marriage licenses
to gay couples.

But opponents say same-sex marriage legality should be decided by
states, not judges.

Republican presidential candidate Mike Huckabee said: "This flawed,
failed decision is an out-of-control act of unconstitutional judicial
tyranny."

Rick Santorum, also a Republican presidential candidate, lamented that
five "unelected judges redefined the foundational unit of society".

Some opponents argue it is an affront to traditional marriage between a
man and a woman and the Bible condemns homosexuality.

The emotions of the issue were apparent during the court's April 28 oral
arguments in the case when a protester in the courtroom shouted at the
justices that they would "burn in hell" if they backed gay marriage.

Mr Obama is the first sitting president to back gay marriage and his
administration argued on the side of the same-sex marriage advocates.

The legal repercussions for same-sex couples are broad, affecting not
just their right to marry but also their right to be recognised as a
spouse or parent on birth and death certificates and other legal papers.

Big business had urged the justices to support gay marriage, saying in a
brief submitted in the case that inconsistent state laws impose burdens
on companies and marriage bans can conflict with corporate
anti-discrimination and diversity policies.

The ruling is the latest milestone in the gay rights movement in recent
years.

In 2010, president Barack Obama signed a law allowing gays to serve
openly in the US military.

In 2013, the high court ruled unconstitutional a 1996 US law that
declared for the purposes of federal benefits marriage was defined as
between one man and one woman.

Reuters

(2) Of the 5 judges who voted for Gay Marriage, 3 are Jewish

(non-Jewish) Anthony Kennedy, a Catholic
Sonia Sotomayor

(Jewish) Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan

https://en.wikipedia.org/wiki/Stephen_Breyer
Stephen Breyer, SCOTUS photo portrait.jpg ... Francisco, the son of Anne
A. (née Roberts) and Irving Gerald Breyer, and raised in a middle-class
Jewish family.

Ruth Bader Ginsburg | Jewish Women's Archive
https://jwa.org/encyclopedia/article/ginsburg-ruth-bader Ruth Bader
Ginsburg is the first Jewish woman (and only the second woman) appointed
to the United States Supreme Court.

Elena Kagan - Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Elena_Kagan Elena Kagan (pronounced
/?ke???n/; born April 28, 1960) is an Associate Justice ..... the eighth
Jewish justice, making three of the nine current justices Jewish.

Dissenting Jusges: Samuel Alito, John Roberts, Antonin Scalia, and
Clarence Thomas

(3) How the 9 Judges Voted - from The Atlantic

http://www.theatlantic.com/politics/archive/2015/06/gay-marriage-legal-in-the-united-states-of-america/396947/

Gay Marriage Is Now a Constitutional Right in the United States of America

On Friday, the Supreme Court issued a 5 to 4 decision in favor of
same-sex unions.

Emma Green

Jun 26, 2015

The first line of the U.S. Supreme Court’s decision in Obergefell v.
Hodges, on the legality of same-sex marriage in the United States, is as
breathtaking as it is legalistic.

     The Fourteenth Amendment requires a State to license a marriage
between two people of the same sex and to recognize a marriage between
two people of the same sex when their marriage was lawfully licensed and
performed out-of-State.

There it is, the ruling that gay-marriage advocates and opponents have
been waiting for since April when the Court took up the case—but really,
for years long before that. There is now a constitutional right for
people of the same sex to get married in the United States. Related Story

A New Right Grounded in the Long History of Marriage

The Court’s opinion—authored by Justice Anthony Kennedy, a Catholic who
has long been seen as the possible swing vote on gay marriage, joined by
Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia
Sotomayor, and with four separate dissents authored and joined by
combinations of  Samuel Alito, John Roberts, Antonin Scalia, and
Clarence Thomas—lists four major reasons for its decision. First,
Kennedy writes that “decisions about marriage are among the most
intimate that an individual can make.” Allowing LGBT people to marry is
a matter of personal choice and autonomy, just as it was in the Court’s
1967 decision in Loving v. Virginia, which outlawed bans on interracial
marriage.

Second, Kennedy writes, marriage is a distinctive institution: “It
supports a two-person union unlike any other in its importance to the
committed individuals.” Here, he points to the Court’s opinion in
Griswold v. Connecticut, which affirmed the right of married couples to
use birth control. “Same-sex couples have the same right as opposite-sex
couples to enjoy intimate association.”

But then, the decision takes an interesting turn: The Court seems to
flip the oft-used reasoning of same-sex marriage opponents, who claim
that gay marriage is harmful to children and families, and disruptive to
the longstanding order of American society. In the oral arguments for
Obergefell, several justices raised this very question—even Breyer, who
joined in the decision, said that marriage between a man and a woman
“has been the law everywhere for thousands of years. Suddenly you want
nine people outside the ballot box to require states to change [this
configuration].” But on Friday, Breyer joined four of his colleagues to
do exactly that.

“Protecting the right to marry ... safeguards children and families and
thus draws meaning from related rights of childrearing, procreation, and
education,” Kennedy writes. Not all straight married couples have
children, and they’re certainly not required to do so by law, he
reasons; the same rule should apply to gay married couples. But more
importantly, for those gay couples that do want to have kids—including
the many couples who adopt or have children using the genetic material
of one parent—that their unions are less than marriage under the law
creates a “more difficult and uncertain family life. The marriage laws
at issue thus harm and humiliate the children.”

“Rising from the most basic human needs, marriage is essential to our
most profound hopes and aspirations.”

Finally, Kennedy affirms that marriage is “a keystone of the Nation’s
social order.” It is the institution at the center of the United States’
legal and educational structures, and because of this, “it is demeaning
to lock same-sex couples out of a central institution of the Nation’s
society, for they too may aspire to the transcendent purposes of marriage.”

“Rising from the most basic human needs, marriage is essential to our
most profound hopes and aspirations,” Kennedy writes. This is, perhaps,
the most striking argument of all, for it is an argument about the
nature, significance, and dignity of marriage itself. “The ancient
origins of marriage confirm its centrality, but it has not stood in
isolation from developments in law and society,” Kennedy writes, but the
“institution—even as confined to opposite-sex relations—has evolved over
time.”

The dissents from Alito, Roberts, Thomas, and Scalia are scathing. The
chief justice argues that the Court has stepped far beyond its bounds,
stating simply, “this Court is not a legislature.” Like his colleagues
in the majority, he delves into the history of marriage, even giving a
nod to one of the favorite arguments of gay-marriage opponents: that
legalizing gay marriage is essentially a slippery slope. In fact, he
writes, the leap from heterosexual marriage to same-sex marriage is
“much greater than one from a two-person union to plural unions, which
have deep roots in some cultures around the world.” His conclusion: “The
majority expressly disclaims judicial ‘caution’ and omits even a
pretense of humility, openly relying on its desire to remake society
according to its own ‘new insight’ into the ‘nature of injustice.’ …
Just who do we think we are?”

Scalia’s dissent carries a much more mocking tone—indeed, he says he
concurs with Roberts entirely, but is writing a separate dissent to
“call attention to this Court’s threat to American democracy.” He
diagrams several of Kennedy’s sentences and states his astonishment at
“the hubris reflected in today’s judicial Putsch.” His main objection is
that the Court has stepped beyond the boundaries of the law—not just in
Obergefell, but over the course of several recent decisions.

“With each decision of ours that takes from the People a question
properly left to them—with each decision that is unabashedly based not
on law, but on the ‘reasoned judgment’ of a bare majority of this
Court—we move one step closer to being reminded of our impotence,” he
writes.

“The majority and omits even a pretense of humility ... Just who do we
think we are?”

And there were hints of the battles ahead. In each of their dissents,
Thomas and Alito address the question of religious liberty, arguing that
this decision will make it much more difficult for those who oppose gay
marriage on the basis of faith to exercise their beliefs.

“It will be used to vilify Americans who are unwilling to assent to the
new orthodoxy,” Alito writes. “In the course of its opinion, the
majority compares traditional marriage laws to laws that denied equal
treatment for African-Americans and women. The implications of this
analogy will be exploited by those who are determined to stamp out every
vestige of dissent.” Thomas predicts that the decision will present
challenges for churches and other religious organizations that must now
determine whether to recognize civil same-sex marriages, and Roberts
warns of challenging questions about the tax status of religious
non-profits, like colleges, that discriminate on the basis of sexual
orientation.

Let those challenges come. Opponents of same-sex marriage have long
argued that the institution of marriage is sacred, and that gay unions
would change its very nature. They have contended that it has been
historically defined as a union between one man and one woman, and that
the Court does not have the authority to change that definition. With
this decision, the Supreme Court of the United States dissents.

(4) Excerpts From the Supreme Court Majority Opinion

http://abcnews.go.com/Politics/wireStory/excerpts-supreme-court-majority-opinion-dissents-32054771

Excerpts From the Supreme Court Majority Opinion, Dissents

Jun 26, 2015, 1:31 PM ET

By The Associated Press

Excerpts from the majority opinion of Justice Anthony Kennedy and
dissents written by Chief Justice John Roberts and Justices Antonin
Scalia, Clarence Thomas and Samuel Alito in the Supreme Court's 5-4
ruling Friday that declared a constitutional right to same-sex marriage:

———

KENNEDY:

"No union is more profound than marriage, for it embodies the highest
ideals of love, fidelity, devotion, sacrifice and family. In forming a
marital union, two people become something greater than once they were.
As some of the petitioners in these cases demonstrate, marriage embodies
a love that may endure even past death. It would misunderstand these men
and women to say they disrespect the idea of marriage. Their plea is
that they do respect it, respect it so deeply that they seek to find its
fulfillment for themselves. Their hope is not to be condemned to live in
loneliness, excluded from one of civilization's oldest institutions.
They ask for equal dignity in the eyes of the law. The Constitution
grants them that right."

"Far from seeking to devalue marriage, the petitioners seek it for
themselves because of their respect — and need — for its privileges and
responsibilities. And their immutable nature dictates that same-sex
marriage is their only real path to this profound commitment."

"The nature of marriage is that, through its enduring bond, two persons
together can find other freedoms, such as expression, intimacy and
spirituality. This is true for all persons, whatever their sexual
orientation. There is dignity in the bond between two men or two women
who seek to marry and in their autonomy to make such profound choices."

"Excluding same-sex couples from marriage thus conflicts with a central
premise of the right to marry. Without the recognition, stability and
predictability marriage offers, their children suffer the stigma of
knowing their families are somehow lesser. They also suffer the
significant material costs of being raised by unmarried parents,
relegated through no fault of their own to a more difficult and
uncertain family life. The marriage laws at issue here thus harm and
humiliate the children of same-sex couples."

"The right to marry is fundamental as a matter of history and tradition,
but rights come not from ancient sources alone. They rise, too, from a
better informed understanding of how constitutional imperatives define a
liberty that remains urgent in our own era. Many who deem same-sex
marriage to be wrong reach that conclusion based on decent and honorable
religious or philosophical premises, and neither they nor their beliefs
are disparaged here. But when that sincere, personal opposition becomes
enacted law and public policy, the necessary consequence is to put the
imprimatur of the state itself on an exclusion that soon demeans or
stigmatizes those whose own liberty is then denied. Under the
Constitution, same-sex couples seek in marriage the same legal treatment
as opposite-sex couples, and it would disparage their choices and
diminish their personhood to deny them this right." [...]

(5) Dissenting Opinion: Chief Justice Roberts refers to the universality
of Man-Woman marriage in other cultures

Excerpts From the Supreme Court Majority Opinion, Dissents

Jun 26, 2015, 1:31 PM ET

By The Associated Press

ROBERTS:

"Many people will rejoice at this decision, and I begrudge none their
celebration. But for those who believe in a government of laws, not of
men, the majority's approach is deeply disheartening. Supporters of
same-sex marriage have achieved considerable success persuading their
fellow citizens — through the democratic process — to adopt their view.
That ends today. Five lawyers have closed the debate and enacted their
own vision of marriage as a matter of constitutional law. Stealing this
issue from the people will for many cast a cloud over same-sex marriage,
making a dramatic social change that much more difficult to accept."

"The court invalidates the marriage laws of more than half the states
and orders the transformation of a social institution that has formed
the basis of human society for millennia, for the Kalahari bushmen and
the Han Chinese, the Carthaginians and the Aztecs. Just who do we think
we are?"

"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." [...]

(6) Dissenting Opinion: Scalia calls it a "judicial Putsch"

Excerpts From the Supreme Court Majority Opinion, Dissents

Jun 26, 2015, 1:31 PM ET

By The Associated Press

SCALIA:

"What really astounds is the hubris reflected in today's judicial
Putsch. The five Justices who compose today's majority are entirely
comfortable concluding that every state violated the Constitution for
all of the 135 years between the Fourteenth Amendment's ratification and
Massachusetts' permitting of same-sex marriages in 2003. They have
discovered in the Fourteenth Amendment a 'fundamental right' overlooked
by every person alive at the time of ratification, and almost everyone
else in the time since."

"The opinion is couched in a style that is as pretentious as its content
is egotistic. It is one thing for separate concurring or dissenting
opinions to contain extravagances, even silly extravagances, of thought
and expression; it is something else for the official opinion of the
court to do so. Of course the opinion's showy profundities are often
profoundly incoherent."

"If, even as the price to be paid for a fifth vote, I ever joined an
opinion for the court that began: "The Constitution promises liberty to
all within its reach, a liberty that includes certain specific rights
that allow persons, within a lawful realm, to define and express their
identity," I would hide my head in a bag. The Supreme Court of the
United States has descended from the disciplined legal reasoning of John
Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

"The world does not expect logic and precision in poetry or
inspirational pop-philosophy; it demands them in the law. The stuff
contained in today's opinion has to diminish this court's reputation for
clear thinking and sober analysis."

———

THOMAS:

"The majority invokes our Constitution in the name of a 'liberty' that
the framers would not have recognized, to the detriment of the liberty
they sought to protect."

———

ALITO:

"Most Americans —understandably — will cheer or lament today's decision
because of their views on the issue of same-sex marriage. But all
Americans, whatever their thinking on that issue, should worry about
what the majority's claim of power portends."

(7) Roberts "wrong about marriage practices of Kalahari Bushmen, Han
Chinese, Carthaginians, Aztecs"

http://www.washingtonpost.com/blogs/worldviews/wp/2015/06/26/justice-roberts-cited-the-traditions-of-four-cultures-in-his-dissent-on-gay-marriage-heres-what-he-didnt-mention/

Justice Roberts cited the traditions of four cultures in his dissent on
gay marriage. Here’s what he didn’t mention.

By Ishaan Tharoor June 26

In his written dissent to the Supreme Court's decision to effectively
legalize gay marriage in all 50 states in the United States, Chief
Justice John G. Roberts Jr. made a conspicuous gesture to the rest of
the world. He referred to the "social institution" that the majority of
the court was "transforming," and anchored its legitimacy in the
currents of history.

     ...the Court invalidates the marriage laws of more than half the
States and orders the transformation of a social institution that has
formed the basis of human society for millennia, for the Kalahari
Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who
do we think we are?

It's not quite clear to WorldViews why Roberts decided to implicate
these four particular cultures in his opposition to the legalizing of
gay marriage. But we can suggest reasons why they are hardly exemplars
of "traditional" unions between men and women.

The Kalahari Bushmen

These hunter-gatherers in sub-Saharan Africa have long been the world's
stock image of "primitive man," and presumably that's why Roberts
referenced them -- as the stereotype of an atavistic people, whether
it's fair or not. (It's not, but let's move on.) The Kalahari Bushmen
don't have very strong wedding practices, and don't pay much attention
to ceremonies around mating.

Early European accounts of tribes and kingdoms encountered in southern
Africa included details of warrior women styling themselves as kings
(not "queens"), polygamous households where lesbianism was common, and
even ancient Bushmen rock paintings depicting explicit homosexual sex.

Han Chinese

Again, it's unclear what exactly Roberts is invoking by mentioning the
largest ethnic group in China. Gay marriage is not legal in China, but
activists are working to change that. A whole set of other "traditional"
wedding practices -- including the grisly custom of "corpse brides" --
are banned.

During the Han dynasty, the ancient lineage of kings that gives the Han
their name, homosexuality was rife. Almost all the emperors -- you know,
the lawgivers of the land -- of the Western Han dynasty apparently had
same-sex lovers.

The Carthaginians

For centuries, the Carthaginians were Rome's greatest rival, and sparred
for preeminence in the ancient Mediterranean. The great Hannibal,
general of Carthage's legions, famously crossed the Alps with war
elephants in 218 B.C. and almost snuffed out the world-conquering empire
before it bloomed. Sadly for him, things went the other way.

Now, some right-wing Italian scholars of Roman history see in Carthage
the seeds of Rome's eventual fall. Why? Well, according to Roberto De
Mattei, formerly the deputy head of Italy's National Research Council,
Carthage "was a paradise for homosexuals." After it was conquered by
Rome, said De Mattei in 2011, "the abhorrent presence of a few
[Carthaginian] gays infected a good part of the [Roman] people."

De Mattei's remarks led to a heated backlash, but one imagines Roberts
was not that aware of the debate.

The Aztecs

Here's an excerpt from a discussion of Aztec customary law on the Web
site of the University of Texas at Austin. It hardly presents a
picture-perfect snapshot of conservative family values:

     Marriage was conditional in that the parties could decide to
separate or stay together after they had their first son. Marriages
could also be unconditional and last for an indefinite period of time.
Polygamy and concubines were permitted, though this was more common in
noble households and marriage rites were only observed with the first,
or principal, wife. Aztec families could live in single family homes,
though many opted to live in joint family households for economic reasons.

Then you have to factor in the whole human sacrifice thing. Children,
meanwhile, needed to behave: "Parents were permitted to physically
punish their children, and would beat them using maguey spines or force
them to inhale chili smoke," notes UT-Austin's site.

What you need to know about the same-sex marriage decision(0:59) The
Supreme Court ruled, 5 to 4, that same-sex marriage bans are
unconstitutional. Here's what you need to know. (Gillian Brockell/The
Washington Post)

Ishaan Tharoor writes about foreign affairs for The Washington Post. He
previously was a senior editor at TIME, based first in Hong Kong and
later in New York.

(8) On Gay Marriage, John Roberts Invokes … the Aztecs?

http://takingnote.blogs.nytimes.com/2015/06/26/on-same-sex-marriage-john-roberts-invokes-the-aztecs/

By Lawrence Downes

June 26, 2015 1:06 pm June 26, 2015 1:06 pm

John Roberts’s dissent in today’s same-sex marriage ruling includes an
odd paragraph accusing the majority of blindness to truths as old as
humanity. The misguided majority, he says, “orders the transformation of
a social institution that has formed the basis of human society for
millennia, for the Kalahari Bushmen and the Han Chinese, the
Carthaginians and the Aztecs. Just who do we think we are?”

I’m sure his clerks did their research. But it can be risky when you go
around the world, and back through the ages, looking for societies and
cultural norms to bolster your 21st-century conservative American point
of view.

Especially with the Aztecs.

I’m no expert, but three minutes of online searching led me to this
examination of Aztec law and culture by the Tarlton Law Library and the
Benson Latin American Collection at the University of Texas at Austin.
It looks pretty reliable to me.

Money quotes:

     “Men got married between the ages of 20-22, and women generally got
married at 15 to 18 years of age. Parents and relatives decided when and
who their children would marry, and sometimes used marriage brokers.
Nobles could only marry other nobles, and marriages were often used to
form political alliances.

     “Marriage was conditional in that the parties could decide to
separate or stay together after they had their first son. Marriages
could also be unconditional and last for an indefinite period of time.
Polygamy and concubines were permitted, though this was more common in
noble households and marriage rites were only observed with the first,
or principal, wife.”

Why does this make me think of Rush Limbaugh and Newt Gingrich? But
never mind. As Justice Roberts and his fellow dissenters keep insisting,
we need to learn from the Aztecs, not gay couples, because this is all
about protecting children.

     “Aztec families were very close knit. Children were considered
gifts from the gods, but were expected to be obedient to their parents
and elders. Parents were permitted to physically punish their children,
and would beat them using maguey spines or force them to inhale chili
smoke.”

(9) NYT editorial: A Profound Ruling Delivers Justice on Gay Marriage

http://www.nytimes.com/2015/06/27/opinion/a-profound-ruling-delivers-justice-on-gay-marriage.html?_r=0

A Profound Ruling Delivers Justice on Gay Marriage

By THE EDITORIAL BOARD

JUNE 26, 2015

To the list of landmark Supreme Court decisions reaffirming the power
and the scope of the Constitution’s guarantee of equal protection under
the law — from Brown v. Board of Education to Loving v. Virginia to
United States v. Windsor — we can now add Obergefell v. Hodges.

In a profound and inspiring opinion expanding human rights across
America, and bridging the nation’s past to its present, Justice Anthony
Kennedy wrote: “The right to marry is a fundamental right inherent in
the liberty of the person, and under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment couples of the same sex
may not be deprived of that right and that liberty.”

As news of the ruling came out on Friday morning, opponents of same-sex
marriage struggled to fathom how the country they thought they
understood could so rapidly pass them by. But, in fact, the court’s
decision fits comfortably within the arc of American legal history.

As Justice Kennedy explained, the Constitution’s power and endurance
rest in the Constitution’s ability to evolve along with the nation’s
consciousness. In that service, the court itself “has recognized that
new insights and societal understandings can reveal unjustified
inequality within our most fundamental institutions that once passed
unnoticed and unchallenged.”

For gays and lesbians who have waited so long for the court to recognize
their relationships as equal to opposite-sex relationships, it was a
remember-where-you-were-when-it-happened moment.

Addressing what he called “the transcendent importance of marriage,”
Justice Kennedy wrote that “through its enduring bond, two persons
together can find other freedoms, such as expression, intimacy, and
spirituality. This is true for all persons, whatever their sexual
orientation. There is dignity in the bond between two men or two women
who seek to marry and in their autonomy to make such profound choices.”

Justice Kennedy’s focus on dignity and equality has been central to his
majority opinion in each of the court’s three earlier gay rights cases.
In 1996, the court held that states cannot deny gays, lesbians and
bisexual people legal protection from discrimination. In 2003, it held
that states cannot ban consensual sexual relations between people of the
same sex. And in 2013, it struck down the heart of a federal law
defining marriage as between one man and one woman.

In Friday’s ruling, Justice Kennedy emphasized the dignity and equality
not only of same-sex couples, but of their families and children.
“Without the recognition, stability, and predictability marriage
offers,” he wrote, the children of these couples “suffer the stigma of
knowing their families are somehow lesser.”

President Obama, who opposed same-sex marriage in his first presidential
campaign but announced in 2012 that he had changed his mind, said the
decision “affirms what millions of Americans already believe in their
hearts: When all Americans are treated as equal, we are all more free.”

And yet, in the midst of all the hard-earned jubilation surrounding the
decision, it was difficult not to think of the people who did not live
to see this day.

People like John Arthur, who died in October 2013, only months after he
married his partner of more than 20 years, Jim Obergefell, on the tarmac
of Baltimore-Washington International Airport. They lived in Cincinnati,
but Ohio would not let them marry; voters there had passed a
constitutional ban on same-sex marriage in 2004. As Mr. Arthur lay on a
stretcher, dying of amyotrophic lateral sclerosis, he and Mr. Obergefell
took a private medical jet to Maryland, where same-sex marriage is
legal. They were married in a brief ceremony and then flew home.

When Ohio officials refused to put Mr. Obergefell’s name on his
husband’s death certificate, he sued. Last November, the United States
Court of Appeals for the Sixth Circuit ruled against him and other
couples challenging bans in Michigan, Kentucky and Tennessee. Same-sex
marriage, the court said, is a “social issue” for voters, and not the
courts, to decide. Friday’s decision reversed that ruling.

The humane grandeur of the majority’s opinion stands out all the more
starkly in contrast to the bitter, mocking small-mindedness of the
dissents, one each by Chief Justice John Roberts Jr., and Justices
Clarence Thomas, Samuel Alito Jr. and Antonin Scalia.

Faced with a simple statement of human equality, the dissenters groped
and scratched for a way to reject it.

The chief justice compared the ruling to some of the most notorious
decisions in the court’s history, including Dred Scott v. Sandford, the
1857 ruling holding that black people could not be American citizens and
that Congress could not outlaw slavery in the territories; and Lochner
v. New York, a 1905 case that is widely rejected today as an example of
justices imposing their own preferences in place of the law.

He invoked the traditional understanding of marriage, which he ascribed
to, among others, Kalahari bushmen, the Carthaginians and the Aztecs.
But Justice Kennedy had a ready reply: “The limitation of marriage to
opposite-sex couples may long have seemed natural and just, but its
inconsistency with the central meaning of the fundamental right to marry
is now manifest.”

Justice Scalia mocked the ruling as a “judicial Putsch” and a threat to
American democracy. “This is a naked judicial claim to legislative —
indeed, super-legislative — power,” he wrote. “A system of government
that makes the people subordinate to a committee of nine unelected
lawyers does not deserve to be called a democracy.”

But that rant is wholly wrong. In American democracy, the judicial
branch is the great bulwark against a majority’s refusal to recognize a
minority’s fundamental constitutional rights. As Justice Kennedy wrote,
“An individual can invoke a right to constitutional protection when he
or she is harmed, even if the broader public disagrees and even if the
legislature refuses to act.”

As gratifying as Friday’s ruling is, remember that equality won by a
single vote.

And within minutes of the ruling, there was resistance by some officials
around the country. Louisiana’s attorney general, James Caldwell, said
his state, one of 13 that still bans same-sex marriage, is not required
to issue licenses to same-sex couples because the Supreme Court has not
yet released an explicit order. Gov. Scott Walker of Wisconsin, a
Republican presidential candidate, called for a constitutional amendment
allowing states to ban same-sex marriage.

Meanwhile, the dwindling number of Americans who oppose same-sex
marriage have shifted tactics to rely on so-called religious-freedom
laws, which they say allow them to, among other things, decline to
provide business services for same-sex weddings.

Justice Kennedy said that Americans who disagree with same-sex marriage,
for religious or other reasons, have the freedom to believe and to speak
as they wish. “But when that sincere, personal opposition becomes
enacted law and public policy, the necessary consequence is to put the
imprimatur of the state itself on an exclusion that soon demeans or
stigmatizes those whose own liberty is then denied.”

Still, the court did not give sexual orientation a special status, like
race or gender, which would provide stronger protection against
discriminatory laws.

More than four decades ago, a male couple in Hennepin County, Minn.,
applied for a marriage license and was denied. When their lawsuit
reached the Supreme Court, the justices dismissed it “for want of a
substantial federal question.”

In the years since, Americans’ attitudes toward gays and lesbians and
the right to marry have changed dramatically. Before Friday’s ruling,
same-sex marriage was already legal in 36 states and the District of
Columbia, representing more than 70 percent of all Americans. A solid
and growing majority now believes in marriage equality; among those ages
18 to 29, support is at nearly 80 percent.

Around the world the change has come even faster. Since 2000, 20
countries — from Argentina to Belgium to South Africa — have legalized
same-sex marriage. In May, an Irish referendum on legalization won the
support of nearly two-thirds of voters.

Justice Kennedy’s opinion will affect the course of American history,
and it will change lives starting now.

A version of this editorial appears in print on June 27, 2015, on page
A20 of the New York edition with the headline: Marriage Equality in
America.