by Lady Michelle Jennifer Santos
26 June 2015, Washington D.C. (TSR) – LGBT individuals have a Constitutionally protected right to wed nationwide, the U.S. Supreme Court said in a historic ruling on Friday that caps the biggest civil rights transformation in a half-century.
It is a momentous day in American history when the Supreme Court of the United States lived up to the words inscribed above the front entrance of the courthouse: Equal Justice Under Law.
Today, for the first time, any couple across America and those in international relationships — straight, lesbian, gay, bisexual, or transgender — may obtain a marriage license, may now wed and make their commitments public, and have their marriage legal and respected in all 50 states. A huge victory for gay-rights advocates just a little over a decade after Massachusetts became the first state to legalize gay marriage.
Voting 5-4, the justices said, finding that the Fourteenth Amendment — which guarantees “equal protection under the law” and the right to “due process of law”, states lack any legitimate reason to deprive gay couples of the freedom to marry.
Justice Anthony Kennedy joined the court’s four Democratic appointees in the majority, bringing gay weddings to the 14 states where they were still banned.“The right to marry is a fundamental right inherent in the liberty of the person,” Kennedy wrote. “Couples of the same sex may not be deprived of that right and that liberty.”
The ruling is a legal landmark, on par with the 1967 Supreme Court decision that guaranteed interracial couples the right to wed. It punctuates a period of sweeping change in the rights of gays, coming only 11 years after Massachusetts became the first state to allow same-sex marriages.
Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented, with each writing a separate opinion. Roberts read a summary of his dissent from the bench for the first time in his 10 years on the court.
Roberts wrote that the gay couples “make strong arguments rooted in social policy and consideration of fairness.” But, he said, “under the Constitution, judges have power to say what the law is, not what it should be.”
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Kennedy’s opinion without adding any separate comments.
“The nature of marriage is that, through its enduring bond, two persons can together find other freedoms, such as expression, intimacy, and spirituality,” Kennedy wrote. “This is true for all persons, whatever their sexual orientation.”
In his ruling, Kennedy expressed why marriage is necessary for true gay equality.
“As the state itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects,” he wrote in the ruling joined by the court’s liberals, justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Later on in the opinion, Kennedy wrote, “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.”
“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 civiliza- tion’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,” Judge Kennedy profoundly said.
Born and raised in an Irish Catholic family in Sacramento, California, Kennedy attended Stanford University (1954–58), graduating with a B.A. in Political Science, after spending his senior year at the London School of Economics. He earned an LL.B cum laude from Harvard Law School in 1961.
The decision signifies a major advance in gay rights. It was just in 2003 that Kennedy wrote a majority opinion striking down Texas’ sodomy law. Before 2004 no states recognized gay marriage, and that year many states went as far as banning same-sex marriage.
Almost 400,000 same-sex couples have already married in places where it is legal, and an estimated 70,000 more now will wed in the new states, according to research by the UCLA School of Law’s Williams Institute.
The Supreme Court had hinted at support for gay marriage in a 2013 decision that struck down part of a law denying federal benefits for same-sex spouses. At the time, only 12 states had gay marriage.
The 2013 ruling created a broad sense that the court would soon take the final step. The justices reinforced that perception by repeatedly letting pro-marriage lower court orders take effect. Those orders increased the number of states where gays could wed to 36, plus the District of Columbia, and helped acclimate Americans around the country to same-sex marriage.
The lead case is Obergefell v. Hodges, 14-556.
Roberts said supporters of gay marriage should “celebrate” the ruling and the “opportunity for a new expression of commitment to a partner.”
“But do not celebrate the Constitution,” he wrote. “It had nothing to do with it.”
Scalia and Thomas joined Roberts’s opinion and also wrote separately.
Scalia called the ruling a “threat to American democracy.”
In his opinion, Kennedy also addressed the argument that voters should be allowed to decide gay marriage.
“Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights,” he wrote.
Kennedy identified four principles that demonstrate why same-sex couples should have the right to marry.
1. The right to “personal choice regarding marriage is inherent in the concept of individual autonomy.”
2. “The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
3. The right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”
4. Marriage is a “keystone of the nation’s social order.”
This was the second time America’s high court took up same-sex marriage. The first time, in June 2013, Kennedy wrote the majority opinion striking down a key provision of the Defense of Marriage Act (DOMA), in a ruling that allowed the US government to recognize same-sex marriages in states where they were already legal.
But the court declined to rule on the broader question about gay marriage: Is there a constitutional right to gay marriage?
The court’s 2013 decision on DOMA has spawned battles across the country over same-sex marriage — including one in Alabama, where courts have issued conflicting rulings leading to an uncertain fate for gay couples.
That latest case reviewed a decision by the US Court of Appeals for the Sixth Circuit to uphold same-sex marriage bans in Michigan, Ohio, Tennessee, and Kentucky, and looked at whether those bans violated the Fourteenth Amendment.
In their petition asking the Supreme Court to hear the case, same-sex couples argued that Kentucky’s same-sex marriage ban “marks the same-sex relationships and the families they create as less valuable and less worthy of respect than opposite-sex relationships.”
That mark creates a stigma, the petition continued, that is “incompatible with the bedrock Constitutional principles animating the Fourteenth Amendment.”
Equal Justice Ruling was Inevitable
USA Today reported on May that YES is where they say saw Judge Kennedy was heading.
Anyone doubting his intentions, though, would do well to read his opinions in the court’s three prior cases expanding the civil rights of gay men and lesbians. Kennedy, whose vote likely will decide the issue, has steadfastly stood up for their dignity and equality against laws he said lacked a legitimate purpose.
Now, most court-watchers expect him to do it again. That would legalize same-sex marriage nationwide and serve as the capstone of Kennedy’s otherwise moderate-to-conservative judicial career — one that will be remembered mostly for its impact on gay rights.
“In all of these cases, he recognizes that gays and lesbians are entitled to equal protection under the law,” says Erwin Chemerinsky, dean of the University of California-Irvine School of Law. “A tradition of discrimination doesn’t in Kennedy’s eyes justify continuing discrimination.”
First came Romer v. Evans, the 1996 case in which the court invalidated a Colorado constitutional amendment that prevented local governments from enacting laws protecting gays and lesbians. Writing for the 6-3 majority, Kennedy said the amendment “inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.”
Then came Lawrence v. Texas, the 2003 case decided by the same 6-3 margin that struck down state sodomy bans aimed at homosexuals. While the case dealt with private sexual conduct, Kennedy said the rights of gays and lesbians to form intimate, lasting relationships was at stake.
“Times can blind us to certain truths,” he wrote, “and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”
By the time United States v. Windsor reached the court in 2013, Kennedy clearly was the go-to justice on gay rights. So Roberta Kaplan, preparing to argue the New York case against the federal Defense of Marriage Act, read and re-read Romer andLawrence “dozens if not hundreds of times.”
The result was a 5-4 ruling in which the court, through Kennedy, struck down a key section of the law denying federal benefits to legally married gay and lesbian couples.
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” he wrote.
So when Obergefell v. Hodges reached the court this year — challenging same-sex marriage bans in Ohio, Michigan, Tennessee and Kentucky — gay rights advocates were confident they had Kennedy’s vote. To which he appeared to answer, not so fast.
Within minutes, Kennedy noted that the traditional definition of marriage as between man and woman has lasted for “millennia.” Then he lamented the court’s inability to “consult social science” if it rules for same-sex marriage before sufficient research has been conducted on how it affects children.
“He probably hadn’t made up his mind when he went into argument,” John Elwood, one of Kennedy’s former law clerks who regularly argues before the court, said. “He knows what’s important to him, and that’s what he was asking about.”
But when former Michigan solicitor general John Bursch presented the states’ defense of their same-sex marriage bans — arguing that voters might have felt biological parents are bound to their children for the long haul in ways that same-sex parents are not — Kennedy said it was “the wrong premise.”
“That assumes that same-sex couples could not have the more noble purpose, and that’s the whole point,” he said. “Same-sex couples say, of course, ‘We understand the nobility and the sacredness of the marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”
Michael Dorf, a constitutional law professor at Cornell Law School and another former Kennedy law clerk, said those comments “pretty strongly indicated that he just wasn’t buying it.”
His earlier misgivings about “millennia” and social science, Dorf says, were just signs that Kennedy was “making himself comfortable with what he intends to do.”
Sitting in the court’s soaring marble chamber two years after presenting her own case, Kaplan began to hear what she had expected. It was what she had read in Romer, Lawrence and Windsor.
“In a really lovely way,” she says, “Justice Kennedy is aspiring to larger principles of human decency, justice and fairness that, frankly, are way above the run-of-the-mill Supreme Court case.”
How Supreme Court Justice Anthony Kennedy’s Gay Mentor Influenced His Views, Beliefs
The Irish Catholic boy who came of age in Sacramento after World War II is an unlikely candidate to be the author of the Supreme Court’s major gay rights rulings.
But those who have known Justice Anthony Kennedy for decades and scholars who have studied his work say he has long stressed the importance of valuing people as individuals. And he seems likely also to have been influenced in this regard by a pillar of the Sacramento legal community, a closeted gay man who hired Kennedy as a law school instructor and testified on his behalf at his high court confirmation hearings in Washington.
With three major gay rights opinions to his name already, the 78-year-old Kennedy is the prohibitive favorite to write the Supreme Court decision in June that could extend same-sex marriage nationwide.
Kennedy’s friendship with Gordon Schaber began in the mid-1960s when Schaber recruited the young lawyer to teach at the McGeorge School of Law in Sacramento. Schaber, who served as the school’s dean for 34 years, was in the process of transforming McGeorge from an unaccredited night school to a respected institution that now is a part of Pacific University.
Schaber never married and was widely believed to be gay, according to accounts from a dozen people who worked for him or were active in Sacramento’s political and legal communities.
“Schaber’s sexual orientation was general knowledge among the Sacramento community and the law school community,” said Glendalee “Glee” Scully, the longtime director of McGeorge’s legal clinic, where students got practical experience by taking on cases for people who couldn’t otherwise afford a lawyer.
Among those who worked at the school when Schaber was dean, not one could recall Schaber discussing his sexual orientation. “Generationally, it was not something gentlemen spoke about,” said McGeorge professor Larry Levine, himself openly gay.
Scully said, “As close as he and Tony Kennedy were as friends, I would doubt they ever had a conversation about it. But how can’t it have helped to some degree Tony’s willingness to have an open mind?”
Only nine years older than Kennedy, Schaber was a mentor to many of the young lawyers he brought to the school and looked after them in ways large and small.
Schaber helped some become judges. Year after year, Kennedy reported the same gift from Schaber on his annual financial disclosures, $400 worth of shirts.
Kennedy spoke at the dedication of the Sacramento courthouse in Schaber’s memory, but he has never talked about how Schaber has influenced his views on the bench. Kennedy declined to respond to questions for this story.
Schaber died in 1997, just shy of his 70th birthday.
By that time, Kennedy had written his first gay rights ruling on the Supreme Court, striking down a Colorado constitutional amendment that prevented local governments from enacting anti-discrimination protections for gays and lesbians.
In 2003, Kennedy again authored the majority opinion in Lawrence v. Texas, which struck down state laws that made gay sex a crime.
“It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons,” Kennedy wrote. “When 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.”
Ten years later, Kennedy’s opinion for the court in U.S. v. Windsor struck down part of the federal anti-gay marriage law. “It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage,” Kennedy wrote in the Windsor case.
The decision left for another day the question of whether states can keep same-sex couples from marrying. That question is now before the court, with arguments set for April 28.
So what are the roots of Kennedy’s views?
Childhood friend Joseph Genshlea said the issue never came up at Stanford University, where they attended college together in the 1950s, or the Sacramento neighborhood in which both grew up and later raised their own families.
“When we were in college, we didn’t even know there was a closet,” Genshlea said. “I don’t have an answer to it except that he’s a very bright guy and he certainly has thought through the issue.”
Another longtime friend, former California Gov. Pete Wilson, said Kennedy always has evaluated people as individuals, not as members of a group. Kennedy, he said, sees everyone “based on their merits.”
Justice Ruth Bader Ginsburg suggested in an interview last summer that one reason for changes in public opinion in favor of same-sex marriage was that, as gay Americans became more comfortable talking about the topic, people learned that they had gay friends and relatives, “people you have tremendous respect for.” She was describing what sociologists call the contact theory, the idea that the majority group’s interactions with a minority will break down stereotypes and enhance acceptance of the minority group.
Helen Knowles, the author of a book about Kennedy’s jurisprudence, said she doesn’t place too much emphasis on this theory.
“Having said that, I have difficulty believing that Kennedy’s friendship with Gordon Schaber didn’t affect his views,” said Knowles, a professor of government at Skidmore College in Saratoga Springs, New York. Her book is “The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.”
Knowles and political science professor Frank Colucci of Purdue University Calumet in Hammond, Indiana, said the earliest indication of Kennedy’s views about the treatment of gays and lesbians can be found in a 1980 ruling that ironically upheld the Navy’s dismissal of gay sailors.
“He rules in favor of the Navy policy, but it’s about as sympathetic as one could be to the plaintiff,” Colucci said.
Kennedy was a judge on the 9th U.S. Circuit Court of Appeals at the time. “Upholding the challenged regulations as constitutional is distinct from a statement that they are wise. The latter judgment is neither implicit in our decision nor within our province to make,” he wrote then. – Mark Sherman, AP