Gay couples united, a court divided
As with marriage, high court split on key cases over years
WASHINGTON — When the Supreme Court convened in 1967 to decide the case of Loving v. Virginia, 16 Southern states made it a crime for an interracial couple to marry.
The trial judge who convicted Richard and Mildred Loving said such laws reflected divine will.
“Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents,” the judge said. “The fact that he separated the races shows that he did not intend for the races to mix.”
Then-Chief Justice Earl Warren quoted those words before declaring the laws banning interracial marriages unconstitutional.
“The freedom to marry” is one of “the vital personal rights” and a “fundamental freedom,” he said. “The principle of equality at the heart of the 14th Amendment” does not permit a state to deny marriage to a couple because of race.
Nearly a half-century later, Justice Anthony Kennedy, who as a boy in Sacramento, Calif., knew Warren, quoted the former chief justice Friday in his own landmark decision striking down state laws that forbid marriage between same-sex couples.
The “right to marry” is a fundamental freedom, Kennedy said. Only the tiniest majority on the court agreed, however, as the case was decided 5-4.
ANALYSIS
And Kennedy’s opinion drew a stinging retort from the current chief justice, who accused Kennedy of “stealing this issue from the people.”
“Just who do we think we are?” John Roberts demanded.
Roberts’ charge highlighted one of the most difficult questions confronting the nine justices: In a time of changing social attitudes, when should they step in to alter or overturn laws approved by voters or other elected branches of government?
The issue has repeatedly divided the high court in recent years, with justices landing on both sides of the question, arguing for judicial restraint in some cases and for intervention in others
Two years ago, the same conservative justices who accused Kennedy and the liberal justices of activism in the gay marriage decision joined with Kennedy to strike down part of the 1965 Voting Rights Act, even though the measure had been approved and extended with nearly unanimous support in the House and Senate.
The four liberal justices, in dissent, expressed a version of the chief justice’s complaint Friday: Just who do you think you are?
The same divide was apparent in 2010 when the court decided a challenge to restrictions on campaign spending.
Congress since 1907 had barred corporations from putting their money into election campaigns.
But in a 5-4 opinion in the Citizens United decision, Kennedy, Roberts and the three conservative justices ruled these bans were unconstitutional. The four dissenting liberals had called for restraint.
Kennedy has cast the deciding vote in all these cases.
An evolution appeared underway with state laws forbidding same-sex marriage, though fewer than a dozen states had actually enacted legislation permitting such marriages.
In 2003, Kennedy had written a powerful opinion that struck down the last remaining laws that criminalized sex between adults of the same gender. But he stopped short of saying gays had a right to marry.
A few months later, the Massachusetts state high court became the first to uphold same-sex marriages.
The tide of public opinion began to turn. By 2013, when the court took up a challenge to the federal Defense of Marriage Act, about half of the Americans surveyed said they supported the notion of samesex marriages.
Once more, Kennedy spoke for a 5-4 majority to strike down the federal ban on benefits for same-sex couples, but he again did not say there was a constitutional right to marry.
When the issue returned this spring, judges across the country had struck down bans on same-sex marriages, and more than 60 percent of the public voiced support.
Yet the current high court remains closely divided. Along with Roberts, Justices Antonin Scalia, Clarence Thomas and Samuel Alito said the court had no business deciding the issue.
The question is “not about whether, in my judgment, the institution of marriage should be changed to include samesex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with the five lawyers” who serve on the high court, Roberts said.
Kennedy, speaking for the majority, said gays and lesbians had waited long enough.
It would be wrong to contend these men and women “disrespect the idea of marriage,” Kennedy wrote. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. … They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”