The U.S. Supreme Court’s landmark ruling on same-sex marriage means that gay and lesbian couples in Georgia will no longer have to be legal strangers.
Once wed, they will now be able to take advantage of the same tangible benefits — filing joint tax returns, making emergency medical decisions, adopting children — long enjoyed by opposite-sex married couples.
The 5-4 ruling, written by the expected swing vote, Justice Anthony Kennedy, also set an important precedent for gay rights that may reach beyond marriage, legal experts said.
As “a technical, legal matter” the ruling only involves marriage, said Eric Segall, a Georgia State University law professor who closely follows the high court. But Segall said close attention should be paid to the end of the majority opinion, in which Kennedy closed with a flourish.
Same-sex couples respect the institution of marriage so deeply they seek its fulfillment for themselves, Kennedy wrote.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Kennedy said. “They ask for equal dignity in the eyes of the law. The Constitution grants them that.”
Because of this language, “any law that does not give gays and lesbians equal dignity to heterosexuals would be invalid under this decision,” Segall said.
Beth Littrell, a senior attorney at the Lambda Legal office in Atlanta, agreed.
“I think the impact of this decision will reach far beyond marriage,” she said. “At a minimum, it sends a message that governments have to come up with a very important justification to be able to a pass law that discriminates against LGBT people.”
‘It’s about equality as much as liberty’
Many members of the legal community who closely followed the case, Obergefell v. Hodges, predicted Kennedy would write the opinion upholding the constitutionality of same-sex marriage. But how he would get there remained an open question.
Would he rule that marriage is such a fundamental right that to deny it to same-sex couples would be a violation of the Constitution’s right to due process? Would he decide the case on equal protection grounds?
Kennedy decided the issue on both grounds.
“(The ruling) is pretty much the best result that proponents of same-sex marriage could have hoped for,” said Tom Lee, a professor at Fordham Law School. “For him, it’s about equality as much as liberty.”
Carl Tobias, a University of Richmond law professor, said Kennedy did not take the classic doctrinal approach to deciding an equal protection claim. This would include a finding that a plaintiff is part of a protected class and then a review of whether a discriminatory law has a legitimate purpose.
Courts give heightened scrutiny to discriminatory laws and practices involving race and gender. Cases involving a plaintiff’s race invite greater scrutiny than cases involving his or her gender, but both are considered part of protected classes. But Kennedy, as he has done in prior cases involving a plaintiff’s sexual orientation, did not go this route.
Even so, Tobias said, “I think that this can be read broadly for other gay rights issues using similar reasoning.” This could include claims involving employment, housing and education, he said.
In the majority opinion, Kennedy retraced society’s treatment of gays and lesbians over the past century: how they were condemned as immoral; how same-sex intimacy was a crime in many states; how they were prohibited from most government employment; how they were targeted by police.
Laws forbidding same-sex marriage not only deny same-sex couples all the benefits afforded to opposite-sex couples, Kennedy wrote, they “disparage their choices and diminish their personhood,” 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,” he wrote.
Same-sex couples may now exercise their fundamental right to marriage, which “embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” Kennedy wrote.
‘I would hide my head in a bag’
All four of the court’s most conservative members — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito — dissented.
Scalia’s dissent was both acerbic and mocking.
He scoffed at the beginning of Kennedy’s opinion, which read, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”
“If I ever joined an opinion for the court (that began that way), I would hide my head in a bag,” Scalia wrote. The Supreme Court has descended from disciplined legal reasoning “to the mystical aphorisms of the fortune cookie.”
It is up to the American people, not the courts, to decide the issue of same-sex marriage, Scalia wrote.
The majority opinion, Scalia said, lacks “even a thin veneer of law” and is akin to a “judicial Putsch,” a reference to the failed coup attempt by Adolph Hitler to seize power in Munich in 1923.
‘Just who do we think we are?’
Roberts’ dissent was pointed but far less biting.
“This court is not a legislature,” Roberts wrote. “… Just who do we think we are?”
Roberts said he will begrudge no one who celebrates the court’s decision.
“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.”
Kennedy acknowledged the argument for more public discussion and political discourse to play out before the high court redefined marriage.
“Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights,” Kennedy wrote. By taking a go-slow approach, the court “would deny gays and lesbians many rights and responsibilities intertwined with marriage.”
He cited the circumstances faced by the case’s lead plaintiff, James Obergefell.
‘Remain strangers even in death’
More than 20 years ago, Obergefell met John Arthur and they fell in love and started a life together. But in 2011 Arthur was diagnosed with amyotrophic lateral sclerosis, the debilitating, incurable disease known as ALS.
Two years ago, Obergefell and Arthur decided to marry before Arthur died. So they traveled from Ohio, where same-sex marriage was illegal, to Maryland, where it is legal. It was so difficult for Arthur to move they were wed inside a medical transport plane on the tarmac in Baltimore.
Three months later, Arthur died, but Ohio law did not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate.
“By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time,’” Kennedy wrote.
Because of Friday’s decision, Obergefell can now be listed as a surviving spouse.
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