Friday, June 26, 2015

The Supreme Court just recognized the constitutional right to same-sex marriage.

I'm disappointed that the decision was only 5-4, with a majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

Still, today is a great day in American history.

The majority concludes:

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.
My mom, Prof. Ann Althouse, writes:
There's a distinct absence of doctrinal particularity about the levels of scrutiny. There's no discussion of the government interest to be served and how closely connected it is to the policy that's supposed to serve that interest. The focus is on the gravity of the burden imposed. . . .

It's notable that the due process analysis predominated and drove the equal protection analysis. I think the inequality is easier to explain and understand, but there are reasons to prefer to frame things in terms of fundamental liberty. Equality is, perhaps, a cooler matter than liberty. There's more passion in liberty and more to disagree about. There's no end to demands for liberty, and which liberties get to be fundamental? That question sets us up for the dissenting opinions, and for those, I'll do separate posts.

Much of Justice Kennedy's opinion is workmanlike and dull, piecing together precedents in an earnest effort to show us that the right found today was really always already there and nothing to do with feelings and political preferences. But there were some glimmers of passion. My favorite example:

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."
Alex Knepper writes (on Facebook):
When I was first realizing I was gay, I was scared: I figured it would preclude me from full participation in society, and for that reason I fiercely resisted admitting my orientation to myself. It's still unbelievable that in just ten years since that time, the nation has moved from -- at best -- tolerance, but often outright hostility -- to widespread acceptance. This ruling will mean millions of people will be relieved of a part of the struggle and self-loathing that so often accompanies self-discovery and coming out, and will instead live with the awareness that same-sex relationships are viewed with legitimacy by their nation. Of course, no law can erase all of the difficulties that accompany being gay -- but gays and lesbians can rest easy knowing that now, at least, the government has done its part to secure our equal treatment under the law.