June 26, 2015: For the Marriage Equality movement, this date is the 1969 Moonwalk, the fall of the Berlin Wall and the I Have A Dream speech all rolled into one 28-page opinion from the Supreme Court of the United States of America. Truly, when the Supreme Court published Obergefell v. Hodges, they created one of the most momentous civil rights decisions in recent times. In the opinion, the Supreme Court held the 14th amendment requires states to issue civil marriage licenses to couples of the same sex and states must recognize same sex civil marriages from other states. The decision has brought marriage equality to all fifty United States.
Marriage equality has been, and continues to be, a contentious issue. At this juncture in time, many, if not most, have embraced equality for gays and lesbians as a matter of human rights, though some still cite the historic social and legal definition of marriage as between heterosexual persons as a reason to safeguard that definition of civil marriage. Still others invoke religious teachings and literature they believe makes marriage equality immoral.
Naysayers and advocates have clashed for decades, but as American culture progressed, it has become safer for gays and lesbians to leave the infamous closet and reintroduce themselves to family and friends. It has become correspondingly difficult for those who find marriage equality distasteful to deny the legal rights tied to marriage for gay couples.
As Americans have struggled, so have the courts. Progress has been sluggish and staggered, moving in baby steps rather than leaps or bounds. It may surprise some to learn it wasn’t until 2003 that the Courts held that it was not appropriate for the states to criminalize the private behavior of two consenting adults. This decision effectively, for the first time, decriminalized same sex relationships in all fifty states.
At the time the decision was released, marriage equality had already reached 39 states. Polls stated that the majority of Americans, particularly young people, support marriage equality. Historically, the Supreme Court does not like to be groundbreaking; rather, it prefers to watch the popular opinion, the legislatures, the lower federal courts, and waits in the shadows until it makes its move, and so it did with this decision.
So, what did the opinion say? Simply, the questions posed to the Supreme Court were: Is it constitutional under the Equal Protection and Due Process clauses to have state laws which allow opposite sex couples to marry, but not same sex couples? If the Court has previously held that marriage is a fundamental right, are same-sex marriages covered within the umbrella of marriage?
The Equal Protection clause does not mean that all people need to be treated the same; it means that all people who are “similarly situated” must be treated the same. A fifth grader cannot drink alcohol or enlist in the Navy. A billionaire cannot receive tax benefits for the poor. Some different treatment is fair under the law. It was clear that the marriage laws did treat a group of people differently, but was the distinction just? There are certain groups that when treated differently under the law, the laws are immediately subject to heightened scrutiny. We all know there is no reason for a law preventing a certain race from voting, and so does the Court. Similarly, the Court had to decide whether there was any reason for a law preventing same-sex couples from marrying. Is discrimination based on sexual orientation more like racial discrimination or like a law preventing a fifth grader from enlisting in the Navy?
This Court considered what, if any, reasons existed to differentiate between same-sex couples and heterosexual couples. After much consideration of the arguments from opponents to same-sex marriage, the Court found itself with a short list of issues deserving further consideration. Is moral disapproval enough of a reason for a state to disallow same sex marriage? The Court in Obergefell said no. Will allowing gay couples to marry hurt the institution of marriage? The Court, again, said no. The Court noted that gay couples wished to engage in the covenant of marriage for the same reasons as opposite sex couples, for love, for the ability of a person to chose their own destiny and maintain personal autonomy, commitment, protections from the state, and to have and hold families. Noting that marriage has long been held to be a fundamental right, the Obergefell Court did not find any reasons to differentiate between same-sex marriages and opposite-sex marriages.
It followed that once the reasons argued for preventing marriage equality were dismantled, what remained was the legal conclusion that it is not permissible for marriage equality to be denied by the states on the basis of the sexual orientation of the parties, and that marriages performed in a state must be recognized by the other states.
It is worth noting that, much like there is not unanimous support for marriage equality among the people of America, this decision was not unanimous, with five Justices joining the majority and four in the minority. The dissenting justices, Scalia, Thomas, Roberts and Alito, could not divorce themselves from the closely-held belief that the drafters of the Constitution did not and could not have supported the legalization of same-sex marriage. The dissenters followed a case where the Court stated that no new rights could be created that did not already exist at the time of the drafting of the Constitution and stated that the Obergefell was undemocratic by allowing the Supreme Court to decide on an issue that they believed was better addressed by the legislatures of the individual states.
The majority, on the other hand, rejected this hard-lined and static approach and married itself to the loftier concepts of the Constitution, the principles, the idealism, and the liberty for individuals thus imagined. Beyond the civil benefits afforded opposite-sex couples, they looked at the denial of dignity to thousands upon thousands of families, the shame that denial of the right created, and considered the impact the denial would have on the children of these families, growing up in a state-sanctioned second-class family. The majority looked at other similar civil rights cases, like the 1967 case Loving v. Virginia where interracial marriage was legalized nationally, and realized the denial of these rights at a national level would only prolong the suffering of these couples at the state level.
In an instant, the Obergefell decision sent long-awaited and much-struggled-for marriage equality across all fifty states of the Union. Much like the Loving v. Virginia case in 1967, it still may take some time for the dissenters, both on the Supreme Court and in the streets, to accept the new civil equality afforded to their neighbors, but in the meantime, the rest of the country can pat itself on the back for its growth, compassion, and the evolution that allowed the dignity of marriage equality to come to all the couples of America.