By a vote of 5-4, a very close case and a thick stack of papers with the opinion, Supreme Court ruled today that 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 a marriage was lawfully licensed and performed out of state. Chief, Scalia, Thomas, and Alito dissented and all wrote dissents.
The Court’s opinion relies on the dual rationales of fundamental rights AND equal protection. The opinion seems to go out of its way not to state a standard of scrutiny. Instead, it says, “It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.” That’s page 22.
The opinion notes that religious institutions have a first amendment right to advocate against same sex marriage so a minor victory there.
Chief Roberts read his dissent, the first time he has ever done so. Toward the end of it, he says, “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. No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
According to blogger Amy Howe, the Court’s decision won’t take effect until the mandate issues in about two weeks, although states are of course free to start implementing it sooner. (After the Court declined to take up the SSM question last fall, meaning that it let stand lower court rulings striking down the bans, same-sex marriages started happening the same day in some of the states, such as Virginia.
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