The free­dom to marry

In its long-awaited rul­ing, the Supreme Court em­braced a deeper un­der­stand­ing of an ex­ist­ing right.

Los Angeles Times - - SUNDAY OPINION -

Pres­i­dent Obama aptly de­scribed Fri­day’s Supreme Court de­ci­sion es­tab­lish­ing a right to same-sex mar­riage in all 50 states as “a vic­tory for Amer­ica.” The long-awaited rul­ing is the cul­mi­na­tion of decades of ac­tivism, hard work and public ed­u­ca­tion that have trans­formed at­ti­tudes to­ward gays and les­bians and the fam­i­lies they’ve formed.

Yet rather than cre­at­ing a com­pletely new right, the court em­braced a deeper un­der­stand­ing of an ex­ist­ing one — just as it did nearly half a cen­tury ago when it over­turned laws against mar­riage be­tween peo­ple of dif­fer­ent races. As Jus­tice An­thony M. Kennedy noted in his lu­cid and lyri­cal ma­jor­ity opin­ion, “changed un­der­stand­ings of mar­riage are char­ac­ter­is­tic of a na­tion where new di­men­sions of free­dom be­come ap­par­ent to new gen­er­a­tions, of­ten through per­spec­tives that be­gin in pleas or protests and then are con­sid­ered in the po­lit­i­cal sphere and the ju­di­cial process.”

By a 5-4 vote, the court found that bans on same-sex mar­riage — like bans on in­ter­ra­cial mar­riage — vi­o­lated the 14th Amend­ment’s guar­an­tees of due process and equal pro­tec­tion of the laws. It did not mat­ter, Kennedy wrote, that ear­lier gen­er­a­tions didn’t read the Con­sti­tu­tion that way.

“The na­ture of in­jus­tice is that we may not al­ways see it in our own times,” Kennedy said. “The gen­er­a­tions that wrote and rat­i­fied the Bill of Rights and the 14th 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.”

In this so­ci­ety, it is the Supreme Court that has the re­spon­si­bil­ity to in­ter­pret the Con­sti­tu­tion in light of chang­ing re­al­i­ties. That is why the dis­senters in Fri­day’s de­ci­sion were wrong to ac­cuse the ma­jor­ity of usurp­ing the demo­cratic process. In a char­ac­ter­is­ti­cally scathing and sar­cas­tic opin­ion, Jus­tice An­tonin Scalia called the de­ci­sion “a naked ju­di­cial claim to leg­isla­tive — in­deed, su­per-leg­isla­tive — power; a claim fun­da­men­tally at odds with our sys­tem of gov­ern­ment.” He re­ferred melo­dra­mat­i­cally to “this court’s threat to Amer­i­can democ­racy.”

Chief Jus­tice John G. Roberts Jr. elab­o­rated on the “anti-demo­cratic” theme by ar­gu­ing that the court’s de­ci­sion de­prived the cause of mar­riage equal­ity of le­git­i­macy by wrest­ing it from the po­lit­i­cal process at a time when it was win­ning con­verts. Roberts wrote that “how­ever heart­ened the pro­po­nents of same-sex mar­riage might be on this day, it is worth ac­knowl­edg­ing what they have lost, and lost for­ever: the op­por­tu­nity to win the true ac­cep­tance that comes from per­suad­ing their fel­low cit­i­zens of the jus­tice of their cause. And they lose this just when the winds of change were fresh­en­ing at their backs.”

Roberts’ im­pli­ca­tion was that laws against same-sex mar­riage will fall re­gard­less of what the court does. But that is not a fore­gone con­clu­sion. On the day in 1967 that the court ruled that laws against in­ter­ra­cial mar­riage were un­con­sti­tu­tional, such pro­hi­bi­tions were on the books in 16 states. It’s likely that, with­out a rul­ing from the court, sev­eral of the 39 states that re­fused to ap­prove same-sex mar­riage would keep their pro­hi­bi­tions, de­spite the re­cent (and re­mark­able) change in public at­ti­tudes to­ward gays and les­bians. Such a patch­work would mock the idea that mar­riage equal­ity is a fun­da­men­tal right.

The dis­senters also sounded another theme: that by ex­tend­ing civil mar­riage to same-sex cou­ples, the court has un­der­mined the free­doms of those who es­pouse tra­di­tional views of mar­riage. Jus­tice Sa­muel A. Al­ito Jr. wrote that “those who cling to old be­liefs will be able to whis­per their thoughts in the re­cesses of their homes, but if they re­peat those views in public, they will risk be­ing la­beled as big­ots and treated as such by gov­ern­ments, em­ploy­ers, and schools.” Roberts warned that the de­ci­sion might lead to gov­ern­ment sanc­tions for re­li­gious in­sti­tu­tions, such as a col­lege that pro­vides mar­ried stu­dent hous­ing only to op­po­site-sex mar­ried cou­ples or a re­li­gious adop­tion agency that declines to place chil­dren with same-sex cou­ples.

The no­tion that this de­ci­sion will si­lence re­li­gious (or other) crit­ics of same-sex mar­riage is un­per­sua­sive. As Kennedy wrote, “re­li­gions, and those who ad­here to re­li­gious doc­trines, may con­tinue to ad­vo­cate with ut­most, sin­cere con­vic­tion that, by di­vine pre­cepts, same-sex mar­riage should not be con­doned.” If they have the courage of con­vic­tions, they won’t be pre­vented by this de­ci­sion from ex­er­cis­ing their 1st Amend­ment rights. Some re­li­gious lead­ers have ac­knowl­edged that the de­ci­sion poses no threat to their teach­ing. Ro­man Catholic Bishop Gre­gory Hart­mayer of Sa­van­nah, Ga., said the rul­ing “is pri­mar­ily a dec­la­ra­tion of civil rights and not a re­def­i­ni­tion of mar­riage as the church teaches.”

The ques­tion raised by Roberts about ac­com­mo­da­tions for re­li­gious in­sti­tu­tions is a more se­ri­ous con­cern. But it is highly un­likely that re­li­gious col­leges will lose their tax-ex­empt sta­tus for ad­her­ing to their tra­di­tional views about mar­riage. As Roberts noted, states that have le­gal­ized same-sex mar­riage have pro­vided ac­com­mo­da­tion for re­li­gious be­liev­ers. They can still do so af­ter this rul­ing.

The ge­nius of the Amer­i­can Con­sti­tu­tion is that its lofty pre­cepts about due process and equal­ity can be adapted to new re­al­i­ties. That is what the court has done in this de­ci­sion, and the coun­try is bet­ter for it.

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