Not every day do the worlds of law and pop culture collide so tremendously as they did today. Then again, not every day do you have Supreme Court decisions like Obergefell v. Hodges. Undoubtedly you have read close to 525,600 Facebook statuses, tweets, and news clippings about this landmark victory for gay rights. You may be rejoicing. You may be livid. Let’s put those emotions aside for a moment to assess the Obergefell opinion and figure out why love won.
First, a brief history…
Obergefell is certainly a revolutionary decision. But for those following the Court (and political trends) over the past fifteen years, it is hardly a surprise. Prior to the 2000s, a number of states had passed laws criminalizing certain homosexual acts. In Lawrence v. Texas (2003), Justice Anthony Kennedy, writing for the Court, held that such laws discriminated on the basis of sexual orientation and thus violated the Fourteenth Amendment to the U.S. Constitution.
This was a huge step forward for gay rights, but there still remained the matter of gay marriage. In 1996, Congress had passed the Defense of Marriage Act (DOMA), which defined marriage for all federal law purposes as “only a legal union between one man and one woman as husband and wife.” However, in the ten years after Lawrence v. Texas, several states granted marriage rights to same-sex couples, either through judicial or legislative processes. Still, DOMA remained alive-and-well.
Then, in 2013, the Court held in United States v. Windsor (2013) that DOMA was invalid to the extent that it barred the federal government from treating same-sex marriages as valid even when they were lawful in the state where they were licensed. Again, a massive victory for gay rights. (And again, Justice Kennedy authored the opinion.) But what did this mean? It meant that, for example (and as was the case in Windsor), the surviving spouse of a same-sex couple could claim a spousal deduction from the federal estate tax. While this was another huge leap forward, it still did not legalize gay marriage. But by overturning DOMA, it did clear the way for other courts to do so.
Now to today’s opinion…
In the two years since Windsor, many same-sex marriage cases have reached federal courts of appeals, and gay marriage has been legalized in many jurisdictions. But there was still a major problem: A same-sex couple married in one state (where gay marriage was legal) could travel to another state (where gay marriage was not legal) and be denied the benefits of marriage. This meant gay couples could not take advantage of certain spousal tax benefits; evidentiary privileges; adoption rights; medical decision making authority; and so on.
Finally, however, some of these cases reached the Supreme Court in the form of Obergefell v. Hodges (2015), which is actually a combination of several similarly situated cases. In this case, the Court was confronted with the question of whether or not gay marriage is a constitutionally protected right. The issue could be avoided no longer.
As you now know, the Court’s opinion (once again authored by, you guessed it: Justice Kennedy) held that a “fundamental right to marry” can no longer be denied because the partners are of the same sex. Gay marriage–nationwide–is now not only legal, but constitutionally protected. The Court interpreted the two central provisions of the Fourteenth Amendment (the Due Process Clause and the Equal Protection Clause) to mean that same-sex and opposite-sex marriages are equal under the law.
The opinion itself is beautiful in its simplicity. Much of it is devoted to the judicial history summarized above (although to get a full view of that history, you should definitely read the opinion) as well as cultural and political developments spanning the entirety of human civilization. But the meat of the opinion, the real holding (a legal term meaning the binding law of the case), was this: The right to marriage is a right enjoyed equally by all people, gay or straight. This, the Court explained, is firmly rooted in our nation’s history: From past Supreme Court decisions affirming the equality of interracial marriage, to decisions affirming the autonomy of individuals to make of their lives what they will. The issue is not, as some people have framed it, whether there is a constitutional right to gay marriage, but instead whether there is a constitutional right to marriage period. The Highest Court of the Land has now firmly stated that there is such a right.
The majority encountered staunch opposition from the other justices. In fact, each of the justices in the minority (Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito) wrote a separate dissenting opinion. These dissents are of varying degrees of ire and outrage. Yet the one argument that you will most likely hear disparaging Obergefell is that the Court today engaged in “judicial activism.” Chief Justice Roberts encapsulated this argument when he criticized the majority, reciting the ages-old aphorism that, under the Constitution, judges have power to say what the law is–not what it should be.
As with all age-old sayings, I encourage you to take this one with a grain of salt. (But certainly I am not saying you are wrong if you agree with Chief Justice Roberts). Because the line between what the law is and what it should be is a very thin one and is entirely a matter of perspective. The Court’s opinion today affirms a strong heritage of individual autonomy when it comes to the most private and intimate decisions in life. In a separate string of cases (see Loving v. Virginia and Turner v. Safley), the Supreme Court has consistently held that the right to marriage is a right enjoyed by all. The Court’s decision today simply affirmed that sentiment, regardless of sexual orientation. That is what the majority believed the law is. This is what they believed Court precedent compelled them to do. You may agree or disagree (you would be in good company with 4 of the 9 justices on the Supreme Court), but the law is what it is.
So what does this mean for me?
You now have permission to unpack those emotions we put aside at the beginning of this article. This is an opinion that invites a lot of passion from both sides, and rightly so. Even the Supreme Court itself was sharply divided in this close 5-4 decision. You will hear people rejoicing in the spirit of equality. You will hear people decrying the opinion as an affront to Christianity or other religious and moral beliefs. The vehemence of these opinions will not fade quickly. But I am sure that, eventually, it will fade.
From a legal perspective, I loved the decision of Obergefell v. Hodges. In my opinion it got the law exactly right. People may disagree because gay marriage does not fit into their religion; yet the First Amendment prohibits the government from establishing or favoring a religion, so it cannot prohibit gay marriage on those grounds. People may say that gay marriage is not supported by the history and tradition of our country (echoing, in some ways, that same religious argument); yet there is a dearth of case law proving otherwise; and moreover, just because we have always done something does not mean we should continue to do it (e.g., slavery, subjugation of women). People may say that they hate this opinion because, honestly, they just hate gay people. I wish those people did not exist in our society, but they do. And unfortunately, there is no logical or constitutional argument that can persuade people out of their hatred.
Apart from the legality of it all, though, I think it is quite definitely the most beautifully written opinion I have ever read (and as a law student I have, regrettably, read thousands of opinions). It is simple, artful, and bold in ways that causes one to pause and realize that you are indeed witnessing history unfolding before you. There are not many 28-page opinions I enjoy reading, but Justice Kennedy wrote so wonderfully that it sang. It was in many ways a masterpiece. You should really take time to read it (and form your own opinions).
Personally, I am so incredibly happy today for all my gay friends, that you have had your love recognized as a constitutional right that is now the law of the land. Today must feel like a dream come true, and I am truly, truly glad for you. And to all those who are disappointed with today’s ruling, I want to remind you of this: You can disapprove of the Court’s decision but still be happy for the millions of people who are today reveling in love. You can oppose the law without opposing the people affected by the law. You can fight for change without fighting one another. That is the difference between opposition and prejudice. And that is how we can make sure that love really does win.
An Assortment of Favorite Passages From the Opinion
The nature of injustice is that we may not always see it in our own times. 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 character protecting the right of all persons to enjoy liberty as we learn its meaning.
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
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.
David Postic is a third-year law student at the University of Oklahoma.