Posted by Curt on 26 June, 2015 at 8:44 am. 3 comments already!


Ed Morrissey:

In a 5-4 ruling, the Supreme Court has held that the 14th Amendment right to equal protectionrequires states to allow marriage for same-sex couples. The opinion, written by Justice Anthony Kennedy, will strike down any state restrictions for traditional marriage, including those adopted as state-constitution amendments:

The Supreme Court in an historic 5-4 ruling on Friday said there is a right to same-sex marriage in all 50 states, delivering a monumental win for gay and lesbian couples across the country.

Justice Anthony Kennedy, often the swing vote on the court, sided with its more liberal members and authored the decision. …

In the case, known as Obergefell v. Hodges, the court was faced with answering two questions – whether states are required to license a marriage between two people of the same sex and whether states have to recognize same-sex marriage licenses from other states under the 14th Amendment.

That second question is moot after the ruling legalizing same-sex marriage.

The opinion is here, via SCOTUSblog. The core of Kennedy’s argument, legally and philosophically, comes early in it. Not surprisingly to me, Lawrence plays a role in Kennedy’s core argument that marriage is a federal issue, and not a state issue:

Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, 388 U. S. 1, 12, invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78, 95, held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship involving opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. …

Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. 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.

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.

I’ve been arguing ever since Lawrence was decided that it would overturn all sorts of laws, as well as federalize most social issues. Lawrence overturned a rather antiquated but still-used sodomy law in Texas on the basis that it interfered with private conduct between consenting adults, among other issues. Clarence Thomas blasted that decision by noting that stupid laws don’t rise to the level of federal scrutiny just based on their stupidity alone, and that the holding in Lawrence would soon be used to justify federal intervention in many other contexts. And here we are. There are, in fact, twenty-one separate references to Lawrence in this document, most of them in the majority opinion.

Here’s an especially enlightening reference, and a fulfillment of Thomas’ prophecy:

As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made samesex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.

Chief Justice John Riberts wrote the dissent in this case, and he also turns to Lawrence, but to demonstrate the expansion of its doctrine beyond its stated scope. Lawrence attempted to limit government intrusion, Roberts argues, while the majority are now using it for even greater government intrusion:

Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.”

Roberts also rebuts the claim that the Equal Protection Clause covers this decision:

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