Marriage equality completes long legal journey

During the past 12 years, about three dozen states, beginning with Massachusetts in 2003, have come to allow same-sex marriage, as a result of either decisions by lower federal courts or actions by state courts, state legislatures or popular vote.

In California, same-sex marriage was reinstated in 2013 after the U.S. Supreme Court left in place a trial judge’s ruling that overturned Proposition 8, a voter initiative that said only marriages between and man and a woman were valid. Same-sex weddings were previously legal in California for several months in 2008 before Proposition 8 was enacted.

The high court ruled Friday in four cases stemming from Ohio, Kentucky, Michigan and Tennessee, where bans on same-sex marriage were in effect. The couples in the four cases were seeking either the right to marry or the right to have out-of-state marriages recognized. They appealed after a federal appeals court in Cincinnati upheld the same-sex marriage prohibitions in those states.

Justice Anthony Kennedy was joined in the 5-4 majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

He wrote, referring to the plaintiffs in the four cases:

“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.”

Each of the four dissenting justices wrote a separate opinion.

Chief Justice John Roberts said in his dissent that decisions on same-sex marriage should be left up to individual states acting in the democratic process through either their legislatures or voter initiatives.

He said same-sex marriage has “no basis in the Constitution or this court’s precedent” and called the majority decision “judicial policymaking.” At the same time, Roberts said:

“Many people will rejoice at this decision, and I begrudge none their celebration. … If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision … But do not celebrate the Constitution. It had nothing to do with it.”

The other dissenting justices were Antonin Scalia, Clarence Thomas and Samuel Alito.

Scalia wrote that the majority opinion was “a naked judicial claim to legislative power” that was “lacking even a thin veneer of law”:

“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

Constitutional law professor Rory Little of the University of California’s Hastings College of the Law in San Francisco, said, “It’s a historic day.” Little said the ruling is very broad because, in Kennedy’s words, it states the Constitution grants gay and lesbian people “equal dignity in the eyes of the law.”

Little said he expects the decision to apply to gay rights in areas other than marriage, although the details of how it will apply may be worked out in future court cases.

Little said that in some ways, the decision is broader than the landmark 1954 Brown v. Board of Education ruling in which the Supreme Court outlawed school segregation.

That ruling said that schools should integrate “with all deliberate speed,” whereas today’s decision appears to go into effect immediately, Little said.

Little said the decision resulted from “an incredible amount of lawyering over last 20 years” nationwide, including the case in federal court in San Francisco in which U.S. District Judge Vaughn Walker struck down Proposition 8 in 2010.

That ruling went into effect in 2013 after the Supreme Court ruled that the proponents of Proposition 8 lacked the legal standing to appeal.

President Obama said at a news conference that today:

“We made our union a little more perfect. … It is gratifying to see this principle enshrined into law by this decision. It’s a victory for gay and lesbian couples. It’s a victory for the allies, friends and supporters of gay couples. … And this victory is a victory for America.”

Gov. Jerry Brown said in a statement:

“With the anniversary of the 1969 Stonewall riots this weekend, we’re reminded of how long and winding the road to equality has been. Today, our highest court has upheld a principle enshrined in our Constitution, but only now finally realized for same-sex couples across America.”

The Stonewall riots were demonstrations against a police raid on a gay bar in New York City.

Rick Zbur, executive director of Equality California, said:

“Today is one of the most historic days in the history of the lesbian, gay, bisexual and transgender rights movement.”

He said the ruling is a “huge victory” not just for couples living in the 13 states that ban gay marriage because those living in other states “no longer will have to leave our rights at the border when we move or travel.” Protect Marriage, a group that was one of the proponents of California’s Proposition 8, decried the decision.

General Counsel Andy Pugno said in a statement:

“Today’s decision does grave injury to the basic concept that the people — not the courts — make the law. … A bare majority of the Supreme Court has abruptly cut off this ongoing debate, unilaterally imposing its view of what’s good for society by suddenly discovering a new constitutional right that almost no one would have imagined just a few years ago.”

The statement said Protect Marriage “will continue to work toward a society that values the inherent right of every child to have both a mother and a father.” Another group opposing same-sex marriage, Murrieta, California-based Advocates for Faith and Freedom, said the Supreme Court “hijacked the authority of individual states” in both today’s decision and in Thursday’s ruling upholding federal subsidies for people who obtain health insurance in federal marketplaces under the Affordable Care Act.

General Counsel Robert Tyler said of today’s ruling:

“Although we anticipated this decision, it does not lessen the severity of the outcome. … The structural integrity of our democratic system has received a major blow by the U.S. Supreme Court.”

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