A couple of days ago, I ran into a friend while shopping for groceries—one of the perks of living in a small town—and the conversation moved to an imminent Supreme Court ruling about marriage equality. I commented that it feels odd to have to wait for a court ruling to find out if I’m legally married, something that heterosexual couples don’t have to consider. She replied that she thought the ruling was only for the four states in the current SCOTUS lawsuit. Remembering how Citizens United dealt only with one film and was expanded by a highly conservative court to allow hidden donations of unlimited amounts for elections, I pointed out that the Supreme Court can do anything it wants—and frequently does.
Luckily my doubts about a Supreme Court decision rescinding marriage rights in some of the 36 states because of “states rights” or “popular vote” or some other beliefs that create uneven rights across the nation did not come to fruition. In 11 years, the number of states where same-sex couples can legally marry has gone from one to 50. I encourage you to click on this link to revel in the changes within just a little over a decade.
As most of you have heard, today, June 26, 2015, the Supreme Court made marriage equality the law of the land. This ruling is exactly two years after the Supreme Court struck down the badly named Defense of Marriage Act and twelve years after the Supreme Court struck down sodomy laws. On the right side of history, sometimes conservative Justice Anthony Kennedy was the swing vote of the majority and author in all three of these cases. In today’s 34-page opinion, Kennedy wrote that “no union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” He was joined by Justices Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor, and Elena Kagan.
Jose Diaz-Balart wrote:
“The Supreme Court ruled Friday that the U.S. Constitution requires states to license and recognize same-sex marriages, making marriage equality officially the law of the land.
“Two questions stood before the high court: Does the 14th Amendment require states to license a marriage between two people of the same sex, and does that same amendment require a state to recognize legally valid same-sex marriages performed elsewhere?
“The court ruled that the answer to both questions is ‘yes,’ clearing the way for gay and lesbian couples to marry in all 50 states.”
This Supreme Court case, Obergefell v. Hodges, was named after Jim Obergefell, who sued to have his name placed on the death certificate of his late spouse, John Arthur. Marriage equality in his state of Ohio and the other three states of the 6th Circuit Court—Kentucky, Michigan, and Tennessee—had been blocked by that court’s ruling against same-sex marriage. It was the only appellate court to rule against marriage equality in the past nine years.
Thanks to today’s ruling, LGBT military families have access to full federal veterans benefits denied to them because of the patchwork laws granting legalized marriage equality across the nation. Even after the partial demise of DOMA, the VA determined the validity of marriages for benefits by the state of residence, not the state of celebration. Veterans could even be denied full rights to VA home loans. Off the bases where military members were stationed, many married same-sex couples lost their marital rights, and the military could re-locate them to non-equality states where a lesbian or gay could lose the ability to make healthcare decisions for a spouse or enroll a child in school.
Justice Antonin Scalia, roundly ridiculed for his ridiculous and pretentious language in this and other dissents, aptly described the problem of the current court when he wrote that the court is “strikingly unrepresentative” of the country as a whole.
“To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
The “unrepresentative panel” didn’t bother Scalia when the court turned elections over to the wealthy in the cases of Citizens United and American Tradition Partnership v. Bullock. Nor was it a concern of Scalia when the court disenfranchised millions of voters two years ago in Shelby County v. Holder. Scalia had no problem with District of Columbia v. Heller that took states’ rights away from sensible gun laws. Of course, Scalia never criticized the court ruling in Bush v. Gore that put Bush in the presidency although both the popular vote and the electoral vote (proved when the Florida count was completed) were in favor of Al Gore.
The dissenters—Scalia, Clarence Thomas, Samuel Alito, and John Roberts—each wrote his own dissenting opinion. For the first time since he joined the court over ten years ago, Roberts read his dissent from the bench. Thomas’ dissent may have been the most bizarre: he claimed that same-sex couples don’t lose their dignity without marriage just as slaves didn’t lose their dignity in slavery. Roberts said the majority decision was “an act of will, not legal judgment.” He also expressed concern about transforming a social institution forming “the basis of human society for … the Carthaginians and the Aztecs.” I’m still scratching my head about that logic. You can find more mind-boggling dissents here.
The ruling gives the losing side about three weeks to ask for reconsideration. What the 14 states fighting marriage equality at this time will probably compare to the fight against school integration in the 1960s. Rick Scarborough, a former Texas Baptist pastor, told right-wing Virginian E.W. Jackson that he will set himself on fire if the Supreme Court legalizes same-sex marriage. There’s been no record thus far that he has carried out his threat.
GOP presidential candidate Mike Huckabee is on the front line of the fight with his statement that “the Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the law of gravity.” In addition to imposing his personal beliefs on everyone in the United States, he describes himself as being persecuted and advocates for overturning the constitution. Huckabee wants free speech for the Confederate flag but not for accepting same-sex marriage. Other candidates indicated different levels of distress about the ruling.
Scalia is enraged at Kennedy because Scalia claims to know exactly what the authors of the constitution intended and fits his interpretation to his rulings. Kennedy wrote:
“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
Future LGBT rights may come from Kennedy’s use of the word “immutable”—twice—in his opinion. The Supreme Court has now declared that sexual orientation is not a choice because it is of an “immutable nature.”
Kennedy also wrote:
“The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.”
The “sweetest” thing I read about the Supreme Court ruling on marriage equality is Ben and Jerry’s decision to change one of its ice cream flavors to “I Dough, I Dough.” The company selected my favorite flavor, Chocolate Chip Cookie Dough, for the change. Unfortunately, it’s only temporary, but the sleeve for the pint of ice cream is available from the Human Rights campaign with proceeds going to HRC. According to its website, Ben & Jerry’s 1989 decision made it “the first major employer in Vermont to offer health insurance to domestic partners of employees, including same sex couples, and we haven’t spent one minute regretting it.” The company also celebrated Vermont’s legalization of same-sex marriage in 2009 with “Chubby Hubby” replaced by “Hubby Hubby.”
Facebook will also “rainbowify” profile photos.
Kennedy also wrote that the petitioners’ “hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” My spouse is almost 82, and I turned 74 this year. We celebrated our 46th anniversary yesterday. Equal dignity to us means that neither geographical location nor new court rulings can determine the legality of our marriage of one year, eight months, two weeks, and six days. At least for now.
[Note: George Stephanopoulos has asked Family Research Council’s Ken Blackwell to be on Sunday’s ABC This Week. Blackwell has said that marriage equality leads to mass shootings, and the FRC has lied about LGBT people including the claim that gay men molest children. Other mainstream networks no longer feature FRC spokespeople. Tell ABC to do the same.]