The Supreme Court ruled today that state bans on gay marriage are unconstitutional, a 5-to-4 opinion that will legalize gay marriage across the land. The decision, written by Justice Anthony Kennedy, was joined by Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer. Dissents were written by Chief Justice John G. Roberts Jr. and justices Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr..
Here are key excerpts from Kennedy’s deciding opinion and several dissents to put the case and its arguments in perspective.
1. A dramatic and revelatory opening
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. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
— Justice Kennedy, in majority opinion
This is how Kennedy opens the majority opinion, and his stance in framing the case is important. He equates “identity” with “liberty.” Liberty is explicitly protected under the Equal Protection Clause of the 14th Amendment, and by linking liberty to identity, Kennedy begins to set up his argument that same-sex marriage should be protected by the Constitution.
2. A stinging dissent from the chief justice
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. 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.
— Chief Justice Roberts, in dissent
Roberts argues that issues of gay marriage should be left up to legislatures and the political process — and they should not be decided by courts. He raises no legal objection to gay marriage, but rather insists that legalizing it or banning it is an act of social change that should occur only through the democratic process.
3. A living history of “marriage”
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution — even as confined to opposite-sex relations — has evolved over time.
— Justice Kennedy, in majority opinion
Kennedy critiques the idea that a traditional definition of marriage has ever fully existed. Marriage, like all social institutions, changes as society changes, he argues. He goes on to say that marriage used to be based on “political, religious and financial concerns,” but not so any longer.
4. New applications for the Bill of Rights
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
— Justice Kennedy, in majority opinion
While some legal scholars and jurists argue that the interpretation of the Constitution should be limited to the literal text and contemporary understanding of it, Kennedy rejects that view. He argues that the court has a rightful role to evaluate new claims of liberty that the original drafters of the Constitution or its amendments would not have contemplated.
5. Not a judgment on gay marriage — or is it?
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.
–Chief Justice Roberts, in dissent
Roberts repeatedly writes that the case was not about same-sex marriage. He argues it’s about a court’s right to change state law on an issue that he thinks should be controlled by the states. Where Kennedy sees a constitutional violation of rights of gay Americans, Roberts sees a violation of rights of American voters who chose to ban gay marriage. If they want to allow it, he writes, they should vote to do it.
6. A tribute to all forms of marriage
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. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.
–Justice Kennedy, in majority opinion
The final paragraph of Justice Kennedy’s opinion holding that couples of the same sex have a constitutional right to wed is a moving and cogent statement of what marriage means. Kennedy is responding to opponents of gay marriage who argue that it undermines the traditional sanctity of an ancient institution by redefining it. The point of same-sex unions is not to weaken marriage, he argues, but to expand it in the nation as a whole and honor it more fully in their own lives. These lines echo the final paragraph of Loving v. Virginia, the case in which the Supreme Court threw out laws banning interracial marriage in 1967. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival,” Chief Justice Earl Warren wrote then.
7. An “unrepresentative” court
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
— Justice Scalia, in dissent
Scalia took issue with the fact that his fellow justices are making social policy from the bench — not acting as jurists, in his view — even though they hardly represent America. He points out that they all got law degrees from Harvard or Yale or grew up on the coasts. None of them are evangelical Christians or even “a Protestant of any determination.” It is a striking attack on, in Scalia’s words, the “unrepresentative” biographies of the nine men and women on the Supreme Court. A New Jersey-born Catholic educated at Georgetown and Harvard, he necessarily would be among this group.
8. A claim of an unfair comparison
The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between “ ‘freeborne English women’ ” and “ ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong slavery in the colony…. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history.”
— Justice Clarence Thomas, in dissent
Thomas argued that it was unfair to compare laws prohibiting interracial marriage to laws prohibiting gay marriage. One has to do with slavery and a history of segregation, he said, while the other has to do with the evolution of a social norm related to marriage.
9. A clear decision
These considerations lead to the conclusion that 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. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.
— Justice Kennedy, in majority’s opinion
After a lengthy discussion of the case, Kennedy makes clear that a majority of the court believes that gay marriage is protected under the 14th Amendment and that same-sex couples must have the right to civil marriage in the 50 states.
10. No way, no how
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.
— Justice Scalia, in dissent
This line speaks for itself. There was never a chance that he was going to support this decision.