Our Love Is Equal: Justice Kennedy and Civil Rights

A Landmark Decision
The United States Supreme Court in a landmark ruling held today that the right of gays and lesbians to marry within their gender is protected by the Constitution. Today's 5-4 decision, in Obergefell v. Hodges, authored by Justice Anthony Kennedy mandates every state to legally sanction same sex marriage, including those from other states. Four other justices who were Clinton and Obama appointees joined Justice Anthony Kennedy, a Catholic Reagan appointee, who has previously written opinions supporting the rights of gays and lesbians. Three other Republican appointees joined the dissent authored by Chief Justice John Roberts, a George W. Bush appointee.

Our Love Is Equal
Lead litigant James Obergefell, in a composed but emotional statement outside the Court spoke of his over two decade relationship to his husband who he married in a medically equipped plane on a Maryland airport tarmac shortly before his death from ALS, because Ohio barred same sex marriage there. "Our love is equal... No American should have to suffer that indignity," he proclaimed. In a congratulatory phone call to Obergefell, President Obama said, "Your leadership on this changed the country." In a Rose Garden address the President, whose views have changed on the topic, applauded the High Court decision, "People should be treated equally regardless of who they are or who they love." He continued, "Shifts in hearts and minds are possible." Polls show that the nation has shifted in recent decades on the issue of marriage equality, with 61% of Americans in favor of legal status for same sex marriages.

Kennedy's Decision: A Fundamental Right Entitled to Equal Protection
Kennedy's majority decision focused on two parts of the Constitution's 14th Amendment. He cited the Due Process Clause, which protects "personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs." He also cited the Amendment's Equal Protection Clause, which guarantees equal treatment of citizens before the law.

The Fourteenth Amendment, ratified in 1868 after the civil war, had the legal effect of granting citizenship rights to newly freed slaves, who were also entitled to equal protection of the laws:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Court relied on the 14th Amendment in a previous landmark 1967 ruling, Loving v. Virginia, which overturned, bans on interracial marriage in over one dozen states, mostly in the South. Kennedy acknowledged changing societal shifts on marriage: "Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations."

In other decisions, the U.S. Supreme Court has held that the government may not unduly interfere with fundamental rights, like marriage, absent a compelling governmental interest that is enforced narrowly by authorities. The decision noted that even deadbeat divorced parents and prisoners could not be denied the right to marriage. Kennedy cited four reasons that marriage is a fundamental right under the Constitution: individual autonomy, intimate association, stability for families and children, and the central position of rights and status that marriage holds in our legal and social order.

Kennedy wrote about the discrimination and stigma that gays and lesbians faced in recent American history before recounting cases dealing with gays rights:

This Court first gave detailed consideration to the legal status of homosexuals in Bowers v. Hardwick, 478 U. S. 186 (1986). There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans, 517 U. S. 620 (1996), the Court invalidated an amendment to Colorado's Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation.

Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime "demea[n] the lives of homosexual persons." Lawrence v. Texas, 539 U. S. 558, 575.

Two previous gay marriage Supreme Court victories from 2103, Hollingsworth v. Perry and United States v. Windsor addressed more narrow issues without addressing the main question of the right of gays and lesbians having a constitutional right to marry within their gender. Hollingsworth narrowly applied to California on technical legal grounds, while Windsor overturned the denial of federal benefits to those who were married in places where gay marriage was legal.

Justice Kennedy, who was President Reagan's third choice after two other nominations failed or withdrew, has become an important swing vote on the court on issues of civil liberties such as abortion rights and free speech. In particular, he has also emerged as the most prominent defender of gay rights since he assumed his position as Associate Justice in February 1988, after serving for twelve years on the West Coast's U.S. Court of Appeals for the Ninth Circuit. The father of three was born in Sacramento in 1936 and studied at both Stanford and the London School of Economics, and has a law degree from Harvard. Of Kennedy's role as defender of gay rights legal analyst Jeffrey Toobin wrote: "...Kennedy knew many gay people-but he was also a conservative man... A devout and observant Catholic, he needed no instruction in the religious and moral prohibitions on homosexual conduct. He was simply a man transformed by the changing world around him."

His prominent role in protecting the rights of gay people has frequently been rebuked by his Conservative colleagues on the court. Today, Chief Justice condemned the ruling:

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration.

But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens -- through the democratic process -- to adopt their view.

That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Justice Antonin Scalia, who like Kennedy is a Catholic Reagan appointee, offered harsh criticism on the sweep of judicial power to impart liberties not clearly detailed in the actual text:

Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact -- and the furthest extension one can even imagine -- of the Court's claimed power to create "liberties" that the Constitution and its Amendments neglect to mention...

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision -- such as "due process of law" or "equal protection of the laws" -- it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.

No basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment's text, and that bears the endorsement of a long tradition of open, widespread and unchallenged use dating back to the Amendment's ratification.

For many Conservatives, the decision is a judicial power grab from the states that redefines a right that is not explicitly mentioned in the Constitution. However, for marriage equality advocates, the decision is a reasoned one that protects equal rights, dignity and personal autonomy implicitly protected by Constitutional texts, irrespective of whether local politics approve. What the Court did not do today was offer the LGBT a heightened protection for their status in other circumstances as it has done with race and gender. That victory remains for another day. Whatever happens later, however, history will remember Justice Kennedy's words, and his role as a key proponent for the rights of the LGBT community, as well as for individual liberties as a whole:

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 civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Editor's note: The Center for the Study of Hate and Extremism joined an amici brief in this case supporting Mr. James Obergefell