#LoveWins: the US Supreme Court declares same-sex marriages legal
The US Supreme Court effectively declares same-sex marriage legal in all 50 states. What does this mean, legally and culturally, to the World?
[Jakarta, LttW] In a development of anti-discriminatory laws & practices arguably on the same level of Women’s Suffrage of the early 20th century (allowing women to finally vote) and the anti-discrimination movement of the 1960s, the US Supreme Court has recently declared that it is illegal to deny marriage licenses to same-sex couples within the 50 United States of America. Though the USA is not the first nation-state to declare same-sex marriages legal (last month Ireland legalized marriage equality through a decision by national referendum), this development is most certainly very visible throughout the Internet-connected World and will affect cultural discussions on the matter for many people.
Internationally as well as within the US, many people still misperceive this legal development to be a move hostile to ‘traditional’ marriage as defined by (many, if not most) religions around the World, religions which define marriage as exclusively between one man and one woman. This is an understandable misinterpretation, and even the statement from the US Supreme Court have included clarification that the freedom of each religion to define doctrinally and theologically how they each define marriage–religious freedom on marriage–continues to be respected and continues to be off-limits from State intervention. This also concerns how in the past there is a legal practice called Civil Union, where same-sex couples in the past were allowed to form these ‘Civil Unions’ but in effect ‘Civil Unions’ have several distinct disadvantages when compared to legal Marriages. This difference between ‘Civil Unions’ and Marriages is one of the Legal facts which have lead the Supreme Court to declare it Discriminatory and Illegal to deny same-sex couples legal access to marriages.
But what do you think? Should We as trans-national and global societies have differing definitions of such a Universal institution as Marriage? Should Governments, Supreme Courts, and Nation States have any say in defining what a Marriage is? Do you think the SCOTUS decision is an intervention upon personal sovereignty? Have your say in the comments below if you will.
(We also happen to have this discussion on sovereignty over at our Your Thoughts section; if you feel like it, you can also jump right in there).
Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide
By Adam Liptak, June 26, 2015 — New York Times
“No longer may this liberty be denied,” Justice Anthony M. Kennedy wrote for the majority in the historic decision. “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.”
Marriage is a “keystone of our social order,” Justice Kennedy said, adding that the plaintiffs in the case were seeking “equal dignity in the eyes of the law.”
The decision, which was the culmination of decades of litigation and activism, set off jubilation and tearful embraces across the country, the first same-sex marriages in several states, and resistance — or at least stalling — in others. It came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of the unions.
The court’s four more liberal justices joined Justice Kennedy’s majority opinion. Each member of the court’s conservative wing filed a separate dissent, in tones ranging from resigned dismay to bitter scorn.
In dissent, Chief Justice John G. Roberts Jr. said the Constitution had nothing to say on the subject of same-sex marriage.
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “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.”
In a second dissent, Justice Antonin Scalia mocked the soaring language of Justice Kennedy, who has become the nation’s most important judicial champion of gay rights.
“The opinion is couched in a style that is as pretentious as its content is egotistic,” Justice Scalia wrote of his colleague’s work. “Of course the opinion’s showy profundities are often profoundly incoherent.”
As Justice Kennedy finished announcing his opinion from the bench on Friday, several lawyers seated in the bar section of the court’s gallery wiped away tears, while others grinned and exchanged embraces.
Justice John Paul Stevens, who retired in 2010, was on hand for the decision, and many of the justices’ clerks took seats in the chamber, which was nearly full as the ruling was announced. The decision made same-sex marriage a reality in the 13 states that had continued to ban it.
Outside the Supreme Court, the police allowed hundreds of people waving rainbow flags and holding signs to advance onto the court plaza as those present for the decision streamed down the steps. “Love has won,” the crowd chanted as courtroom witnesses threw up their arms in victory.
In remarks in the Rose Garden, President Obama welcomed the decision, saying it “affirms what millions of Americans already believe in their hearts.”
“Today,” he said, “we can say, in no uncertain terms, that we have made our union a little more perfect.”
Justice Kennedy was the author of all three of the Supreme Court’s previous gay rights landmarks. The latest decision came exactly two years after his majority opinion in United States v. Windsor, which struck down a federal law denying benefits to married same-sex couples, and exactly 12 years after his majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.
In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.
“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “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.”
“They have discovered in the Fourteenth Amendment,” Justice Scalia wrote of the majority, “a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
“These justices know,” Justice Scalia said, “that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry.”
Justice Kennedy rooted the ruling in a fundamental right to marriage. Of special importance to couples, he said, is raising children.
“Without the recognition, stability and predictability marriage offers,” he wrote, “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.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.
In dissent, Chief Justice Roberts said the majority opinion was “an act of will, not legal judgment.”
“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,” he wrote. “Just who do we think we are?”
The majority and dissenting opinions took differing views about whether the decision would harm religious liberty. Justice Kennedy said the First Amendment “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” He said both sides should engage in “an open and searching debate.”
Chief Justice Roberts responded that “people of faith can take no comfort in the treatment they receive from the majority today.”
Justice Samuel A. Alito Jr., in his dissent, saw a broader threat from the majority opinion. “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” Justice Alito wrote. “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.”
Gay rights advocates had constructed a careful litigation and public relations strategy to build momentum and bring the issue to the Supreme Court when it appeared ready to rule in their favor. As in earlier civil rights cases, the court had responded cautiously and methodically, laying judicial groundwork for a transformative decision.
It waited for scores of lower courts to strike down bans on same-sex marriages before addressing the issue, and Justice Kennedy took the unusual step of listing those decisions in an appendix to his opinion.
Chief Justice Roberts said that only 11 states and the District of Columbia had embraced the right to same-sex marriage democratically, at voting booths and in legislatures. The rest of the 37 states that allow such unions did so because of court rulings. Gay rights advocates, the chief justice wrote, would have been better off with a victory achieved through the political process, particularly “when the winds of change were freshening at their backs.”
In his own dissent, Justice Scalia took a similar view, saying that the majority’s assertiveness represented a “threat to American democracy.”
But Justice Kennedy rejected that idea. “It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process,” he wrote. “The issue before the court here is the legal question whether the Constitution protects the right of same-sex couples to marry.”
Later in the opinion, Justice Kennedy answered the question. “The Constitution,” he wrote, “grants them that right.”