Victory for Marriage!

Truly an historic day.

A 5-4 decision, with the majority opinion by Justice Kennedy. Chief Justice Roberts joined the dissenters (Scalia, Alito, Thomas).

Holding: Fourteenth Amendment requires a state to license a marriage between two people of the same sex. Sixth Circuit is reversed.

Here’s the opinion. Excerpt:

The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

This dynamic can be seen in the Nation’s experience with gay and lesbian rights. …

The fundamental liberties protected by the Fourteenth Amendment’s Due Process clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. … Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. 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 concludes:

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.

More. OK, enough celebrating. Let the political acrimony begin. From The Hill

That partisan divide could complicate the calculus for Republicans ahead of the 2016 election. Hillary Clinton, the current Democratic front-runner, has already incorporated the issue into her campaign, which she launched with a video that included a brief appearance by a same-sex couple.

But every GOP candidate has spoken out against granting a national right to same-sex marriage, so all eyes will be on how the party reconciles that stance with the court decision.

The party and its presidential contenders will have to decide whether to punt on the issue and remove it from the electoral conversation, or to dig in and fight back with a proposal for a constitutional amendment to overrule the court, as Sen. Ted Cruz (Texas) and Gov. Scott Walker (Wis.) have supported.

By November 2016, a GOP nominee who campaigns in favor of voiding hundreds of thousands of legal marriages and leaving the children of these unions with far fewer family protections is going to seem very extreme, I suspect.

Furthermore. Andrew Sullivan: It Is Accomplished. He recalls:

Much of the gay left was deeply suspicious of this conservative-sounding reform; two thirds of the country were opposed; the religious right saw in the issue a unique opportunity for political leverage – and over time, they put state constitutional amendments against marriage equality on the ballot in countless states, and won every time. Our allies deserted us. The Clintons embraced the Defense of Marriage Act, and their Justice Department declared that DOMA was in no way unconstitutional the morning some of us were testifying against it on Capitol Hill. For his part, president George W. Bush subsequently went even further and embraced the Federal Marriage Amendment to permanently ensure second-class citizenship for gay people in America. Those were dark, dark days.

He concludes, “Know hope.”

And this. The front page of the New York Times for Saturday, June 27.

26 Comments for “Victory for Marriage!”

  1. posted by Tom Scharbach on

    I would urge everyone to read the majority opinion, and each of the four dissents.

    The majority opinion closely follows the “dignity” reasoning of Windsor, and contains some soaring, beautiful language that, I hope, will help mitigate effects of the long and hateful history of oppression that those of us who are old enough to have lived through the post-Stonewell history in our adult lifetimes know so well. I know that it does for me.

    Four dissents were filed:

    (1) Chief Justice Roberts, joined by Justices Scalia and Thomas;
    (2) Justice Scalia, joined by Justice Thomas;
    (3) Justice Thomas, joined by Justice Scalia; and
    (4) Justice Alito, joined by Justices Scalia and Thomas.

    While that might seem like overkill, each of the dissents makes a different point and is worth reading.

    A money quote from the majority opinion:

    “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.”

    countered by a money quote from Chief Justice Robert’s dissent:

    “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.”

    But read the opinions. Obergefell is a major decision, as significant as Loving. This is an amazing day.

  2. posted by Kosh III on


    I’m sure Jerry Falwell is looking up from Hell and screaming in anguish. 🙂

  3. posted by Stuart on

    Yay! Woohoo! But it still doesn’t solve the practical problem of actually finding someone I find attractive who’s attracted to me.

  4. posted by Jim Michaud on

    What is it about June 26th anyway ? We now have a hat trick of pro-gay SCOTUS rulings on this date. I personally would’ve preferred a 6-3, but a win is a win. Has the same effect. YAHOO!!!

  5. posted by Stuart on

    I was going to call all my homophobic friends and say “Yaa! In your face!” but it seemed kind of messy.

  6. posted by Houndentenor on


    One day I may read the dissents but not today.

    • posted by Doug on

      Justice Thomas dissent was just twisted and bizarre. I questions the mans sanity, not to mention the dissent from Scalia.

      • posted by Tom Jefferson III on

        I only read bits of these two justice’s dissenting opinions. However, when you combine them together you are left with the justices thinking that marriage equality has something to do with hippies and slavery.

  7. posted by Lori Heine on

    I’m doing the Snoopy happy dance. (And yes, be glad this does not come with pictures.) I intend to savor this for a few days before paying the least attention to dissents.

    The temper tantrums and soup graping have already begun. It should be entertaining. Don’t let it get you down. It’s just the whining of a bunch of losers.

    • posted by Lori Heine on

      Soup graping?! Some typos are stranger than others.

      • posted by Mike in Houston on

        Spellcheck or not, ‘sour graping’ is now my favorite meme.

  8. posted by Tom Jefferson III on


    I wonder if the folks meeting at the Society For Individual Rights (1924) or the folks meeting in the groups in the 1950s and early 1960s (Mattachine, Daughters of)…imagined that the Constitutional right to due process and equal protection would actually one day apply to them.

    I was disappointed — albeit not to surprised — that Chief Justice Roberts went with the minority opinion (despite some talk earlier about sex discrimination).

    Justice Scalia and Justice Thomas were always going to vote a certain way, but the bits of their minority opinions seem very, very, very weird. I will read the rest of minority opinions someday, but not today.

    Andrew Sullivan book “Virtually Normal” (1996) is not a bad book — I disagree with some of its assumptions and conclusions — but it is not a horrible book and is probably the best thing he has ever written.

    Sometimes he acts like he was the first person in America to champion the cause for marriage equality. Yes, he wrote some good opinion pieces (along with the book), but many other people were also involved in getting us to where we are today.

    Some “gay leftists” may have generally been opposed to marriage (thinking that its exploitative or some such thing) but the vast majority of gay people — no matter their politics — supported marriage equality.

    The harsh “on the ground” political reality was that the democratic process was (at best) lukewarm about ANY gay right issue, and say plenty of benefits in pandering to popular fears and prejudices.

    Privacy rights and equal opportunity were two gay rights issues that could be on the political table. People were trying to build support within the two major parties. Marriage equality was not on the political table, other issues were or could be.

    Sometimes I think that Andrew Sullivan does not always appreciate the differences between American and the British party system…or hopes that other people dont.

    The courts were veeeery slow to apply Constitutional rights — equal protection and due process — to gay people.

    I think that if we look back on the history we will find many people were involved — in public and private ways. Andrew Sullivan was certainly a player, in the 1990s, but he should not be acted like he was the only one that mattered.

    • posted by Lori Heine on

      Since there are couples who are right now getting legally married after having been together for 30, 40 or 50 years, they must certainly have cared about marriage equality long before Andrew Sullivan. Or the Democrats.

      Given some of the hysteria I’ve been hearing from Republicans, the GOP may not be ready to join the 21st Century until it’s at least half over.

  9. posted by Tom Scharbach on

    A side note: Michael and I were interviewed about the decision by a Madison TV channel this afternoon, as a “human interest” angle on the story.

    God knows how Channel 3000 found us, of all people, living as we do out in the sticks. In any event, it was something different to do on a Friday afternoon.

    I meant what I said about feeling that the asterisk is gone from my name, finally, and as I thought about it this afternoon, I realized that it does add something when the Supreme Court says, with me, “Yup, he’s my husband.” I know that we still have a lot to do in the fight for equality, but for this night, I’m just enjoying the ruling.

    • posted by Lori Heine on

      Your land looks a lot like our family’s farm in Minnesota. Very pretty place! Congrats to you and your husband. This was a long time in coming, and you deserve to celebrate.

      Channel 3000! I mustn’t be a spring chicken anymore. I remember when there were 3 networks!

    • posted by Tom Jefferson III on

      Channel 3000? Any relationship to Mystery Science Theater 3000? ;0)

  10. posted by Mike in Houston on

    Seems like the anti-equality dead-ender crowd is falling into one of the various stages of grief: denial, anger, bargaining, depression and acceptance.

    Mostly denial, anger & bargaining at this point… with bargaining mostly about how to preserve the ability to discriminate without people looking at them askew.

    Lindsay Graham seems to be the only one truly in the acceptance range as he’s the only one of the GOP field that’s said the party shouldn’t even go down the futile constitutional amendment path.

  11. posted by Jorge on

    I would urge everyone to read the majority opinion, and each of the four dissents.</I

    Okay. 2/5 done. I'll be back later. (A Thomas dissent that has a point, and what a dazzling opening line, too! Will wonders never cease?)

    But I really can't resist.

    A coupe of days ago, my supervisor said, on an unrelated matter, that we need to avoid bein politically incorrect.

    To which I say, BOO!

    Really, Justice Roberts wants me to celebrate? If you say so.

    I'll say that I feel relief that this decision came around 2015 rather than around 2003. The backlash won't be as bad and people will understand the result, if not the method.

    But I actually don't agree with this idea that the decision removes meaning from the efforts of those who oppose the result. There is more to the democratic process than that. Marriage is about more than what the state says. So, too, is the will of the people about more than the legislative process that this country is known for. That's why four Justices wrote dissents. You can have meaning in your life, you can make a worthwhile contribution to society outside the law making a decision. In these fifteen years of my adulthood, I have seen a lot of things and done a few things; it's a fascinating age to live in as one whose destiny was to become a gay man. I don't believe that the years before this one were meaningless, so it stands to reason that there will still be work to do in the years after this one. It's just that I don't know what that work will be, what will happen. I don't think we will ever be done with what we have to do.

    Celebrating isn't something I do well. I guess I'll pig out for dinner tonight. Is someone out there? (Silence) Alone. Thanks a lot for reminding me, Justice Kennedy. Maybe you should just skim through the decision if you're single, because its paean on marriage is almost as heartrending as being alone in Times Square on New Year's Eve.

    • posted by Jorge on

      Oi. Bad formatting. The first line is me quoting Tom. The rest is me.

  12. posted by Jorge on

    Lindsay Graham seems to be the only one truly in the acceptance range as he’s the only one of the GOP field that’s said the party shouldn’t even go down the futile constitutional amendment path.

    Well, here’s something else for me to look up. That’s not surprising, though. Not only does he have a well-deserved bipartisan reputation, he managed recently to find a way to say he opposes same-sex marriage while sounding both genuine and inoffensive.

    But remember, he’s the only candidate who’s running with a foreign policy focus. He wants to win the battles he thinks carry irreversible consequences. A constitutional amendment can be passed 20 years later; or perhaps the opposition will find they really should come around. That is nothing compared to the consequences taking a nap on the Islamic State (and its many siblings) for 20 years.

    It’s a shame there’s no one else quite like Lindsey Graham left in power.

    You called it, Tom. I’ve never seen anything like it.

    I know they each have their own special agenda and style, but I’ve never seen all four deploy at once.

  13. posted by Francis on

    I didn’t think I’d be hearing from Sully again. Hard to believe it’s only been five months since he withdrew from blogging. Anyway, a toast to Justice Kennedy.

  14. posted by Tom Jefferson da 3rd on

    Lindsay Graham is probably shooting for a place in a GOP administration other than
    President or Vice president. He is trying to act like he has a solid foreign policy vision, which may pay off for him down the road. Unless he raises a lot more money and (cough, cough) marries a very attractive and very popular conservative woman, he is not a front runner.

    Rick and company are probably shooting for a spot on the GOP VP ticket, mainly with the argument that they can bring with them the money and votes of evangelical Christian voters and interest groups.

    Trump is — IMHO — bored. Comedians are thanking the good lord that he entered the race. Last time he ran, he got plenty of mileage by promoting the ‘birther’ movement. This time it looks like he is going to run with the, “lets build a giant wall around Mexico” crowd.

    • posted by Jorge on

      Hmm, I think most of the candidates are trying to control a revolution or counter-revolution within the party and make where each stands in the party’s ideology the new party center.

      Which ones really mean to run for president? The ones who’ve always had dreams of running, of course, especially the tone-deaf longshots. With the more patriotic party- or country-oriented types it’s hard to tell.

      • posted by Tom Jefferson III on

        Mr. J;

        What you are talking about is actually pretty common in primary elections — especially when talking about the two major parties.

        More recently we have seen candidates who are probably running just to increase their lecture circuit fees or to land a lucrative consulting job or to get their own cable TV show.

        However, it is not uncommon for candidates — without a snow ball’s chance in you-know-what running in Republican or the Democratic party primary to “raise issues”. How effective such a candidacy is in doing so, is something that gets debated quite a bit.

        However, Trump’s candidacy strikes me as someone who is bored. In the 1990s he flirted with the possibility of running under the Reform party ticket (back when Jesse Ventura became Governor of Minnesota), but instead opted to run in the Republican party primary, twice.

        This was also back when he sounded much more like a socially liberal/fiscally conservative Independent along the lines of Jesse Ventura.

        I do not know if his um…er…well…”speaking style” and “colorful and creative bending of the English language” are intentional or just something he does because it connects well with certain segments of voters.

        In theory, Trump has the financial resources and media connections (and ownership) to become the GOP front runner in the presidential primary, but I doubt very much he wants that to happen and I doubt that the GOP leadership would want that to happen.

        Trump is basically doing the same sort of ‘race baiting’ and ‘I am not, not pandering to anti-Semitism’ that Patrick Buchanan did throughout his career and (especially) in the 1990s. Hopefully, it is not as successful for Trump.

        Other candidates are pandering to the ‘Christian right’ — probably because they are hoping for a VP slot or something else — career wise.

        Some candidates may actually be hoping to win the GOP presidential nomination, even through it is very, very unlikely (cough, cough, Chris Christie, cough, cough, Bobby Jindal)

  15. posted by Tom Jefferson III on

    Wow. Andrew Sullivan sticks his head out from his retirement bubble to (essentially) argue that he was the only person in America that cared about marriage equality. Really, dude? Come on.

    Many years from now historians will — hopefully — someday be able to gain some insight into the decision making process of Chief Justice Roberts. For a must respectfully disagree with his assertion that marriage equality has nothing to do with the Constitutional rights given to all Americans.

    • posted by Mike in Houston on

      For Sully it’s always and ever shall be about Sully.

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