How SCOTUS Decided To Turn America Gay: A Wonksplainer
In case you missed it, WE ARE ALL GAY MARRIED NOW. If you are a nerd, or a proud American, you might want to know exactly how the Supreme Court made that decision. And we are here to help, YOU'RE WELCOME.
The Supreme Court begins its murder of marriage inequality like so:
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.
This simple concept naturally makes Justice Scalia want to suffocate himself, as he footnotes in his dissent:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “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,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning ofJohn Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
You do that, Scalia. Whatever gets you through the day.
Before the majority offers its legal reasoning for definitively throat-cramming all of U.S. America with marriage equality, Justice Kennedy gives a swirly "history" lesson on the meaning of marriage, throughout the "annals of human history":
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.
It seems that Kennedy and his colleagues paid attention when Justice Notorious RBG schooled them during oral argument on the case, about how the definitions of marriage have changed throughout history, ACTUALLY, as Kennedy later notes:
Marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. [...] As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. [...] As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.
These new insights have strengthened, not weakened, the institution of marriage.
Translation? Suck it, haters. Suck it and swallow.
The opinion recites a brief history of the petitioners -- couples from Michigan, Ohio, Kentucky, and Tennessee, including yr Gay Wonkette's pals Army Reserve Sergeant First Class Ijpe DeKoe and his husband, Thomas Kostura, who simply wanted to live in gay-married peace and quiet, but oh no, their gay-hatin' states couldn't have that -- and concludes:
Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.
Now for some law talk. For the benefit of those who might not be familiar with the Constitution, some quick 'splaining:
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. [...] In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.
For anyone who might want to complain, we suggest they refresh their memories about last year's decision on Hobby Lobby, which found that the Constitution also protects your right to believe birth control is abortion, which the Bible says is bad, and if you say the magic words "sincere religious beliefs," you're exempt from following certain laws you don't like. Guess what! That little-known constitutional codicil covers more than just Hobby Lobby. Who knew?
Oh, and for those who cry "liberty" in opposition to equality? Yeah, about that:
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 charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long held the right to marry is protected by the Constitution.
The justices are also aware of all internet traditions accusing them of being judicial activists, making up laws about the constitutional right to marriage, which they are not allowed to do, so the Court kills that dead by listing all the prior cases in which the Court has ruled on marriage, TAKE THAT:
This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
That's gotta hurt, if you are a bigot.
The Court relies heavily on Loving v. Virginia, the case that said white people and black people can get married if they want to get married, and it's nobody's business but their own. While conservatives have insisted that is TOTALLY DIFFERENT, the Supreme Court says nope, it's exactly the same:
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection
between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. [...] Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.
Also, here is your new definition of marriage. Feel free to needlepoint it on a throw pillow:
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.
We like that a whole lot better than the preferred conservative definition: "one dude who sticks his dick in his one wife to make a lot of babies, for Jesus, even if he is secretly getting some gay strange on the side." Seems more America, dontcha think?
This is where the Court starts straight-up trolling the haters:
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception.
See, homosexians, like birth control, are good for the institution of marriage. Goddamn, that might be our favorite premise of all.
Also, marriage gives us a reason to want to get out of bed every day, giving us hope in the dark and lonely universe, and there's no reason why only heteros deserve that:
Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
And then, just to make Scalia feel really super sad in the empty chamber in his chest where his heart should be, there is this:
As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act. [...] But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there.
Basically, if you have a constitutional right to do buttsex, you have a constitutional right to do MARRIED buttsex too. Sorry not sorry, Justice Scalia.
OK, this is our other favorite part:
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. [...] By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Did you hear that? That is the sound of wingnut heads exploding across America. Isn't it beautiful? But wait. There's more:
Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
Why do you want to HARM AND HUMILIATE children, bigots? Don't you care about The Children?
The Court agrees with the bigots that marriage is, like, super important:
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.
Because marriage is so important, the government has all kinds of for-marrieds-only rights and responsibilities, which are for marrieds only:
These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. [...] Valid marriage under state law is also a significant status for over a thousand provisions of federal law.
You see where this is going, right?
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
In other words, if everyone agrees that marriage is that important, enough to justify a thousand provisions under federal law, it's important for everyone. That includes The Gays.
After spelling out the four basic premises of the Court's decision, the opinion then smacks down all the other supposed reasons, all of which are bad, for banning marriage equality. Like the argument that marriage rights have never applied to gays and lesbians before, so they can't now? Yeah, bullshit:
If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.
And as for the so-called traditional biblical definitions (that are not all that traditional nor biblical)? Meh:
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
Plus, it's dickish, unfair, and just plain rude:
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. 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. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.
And the "research" about how gay marriage will undermine the sanctity of straight marriage, and baby-making, and it will hurt all the straights in their married parts? And then that will end all the marriage forever? The "research" the Sixth Circuit repeatedly invoked, when it struck down gay marriage?
That is also bullshit:
The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decision making processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.
The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.
Shorter SCOTUS? Your "research" is bad, and you should feel bad.
So, you know how whiny critics have said that the Court has no right to decide whether to protect the minority from the bitgoted majority, only The People -- through votes or through their state legislatures -- get to do that? To paraphrase the Court, fuck those guys right in the ear:
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.
It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.
The secondary issue before the Court was whether states that banned gay marriage, like Tennessee, must still recognize the marriages of gay couples lawfully wedded in other states. Our aforementioned yr Gay Wonkette's pals, DeKoe and Kostura, were legally married in New York, but when they moved to Tennessee, their new home state told them their marriage didn't count. So they said, "Oh yeah? We'll see you IN COURT!" And they did. And the Supreme Court says ALL the states must recognize that gay marriage is a constitutional right, and that includes you too, Tennessee: [contextly_sidebar id="Tq1TJA56Bf9G7mcjxKhGYokXYq2cDmms"]
The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
So yeah. They -- and all the other gay-married and lesbian-married couples in America are married -- for real, in all the states now, because the Constitution says. Hooray!