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SCOTUS strikes down gay marriage bans

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Jun. 27th, 2015 | 12:29 am

Just in case you've not heard it yet, the US Supreme Court has struck down remaining state bans on gay marriage, effectively making it legal and available throughout the entire USA. SCOTUSblog has an explanation in plain English:

Today [...] Justice Kennedy again joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan in holding both that states must allow same-sex couples to marry and that they must recognize same-sex marriages from other states.

[...] Justice Kennedy begins his opinion for the Court with a paean to the institution of marriage: he describes it as “essential to our most profound hopes and aspirations,” “sacred to those who live by their religions” and offering “unique fulfillment to those who find meaning in the secular realm.” But it is also, he continues, an institution that “has evolved over time” from an “arrangement by the couple’s parents” to a voluntary agreement between a man and a woman. Similarly, although being gay was once considered an “illness,” public attitudes have shifted significantly.

The Supreme Court, Kennedy’s opinion explains, has long recognized the right to marry as a fundamental right. And although until today it has always done so in the context of opposite-sex couples, he continues, all of the same principles on which the Court has relied in cases involving opposite-sex couples apply equally to same-sex marriage and the recognition of out-of-state same-sex marriages. For example, being able to decide whether to get married is an important part of an individual’s autonomy regardless whether you are the same sex as your intended spouse. Along much the same lines, marriage is a unique way for two individuals – in both same- and opposite-sex partnerships – to demonstrate their commitment to one another.

The Court has also protected the right to marry, the opinion notes, because of its importance for children and families. Laws prohibiting same-sex couples from marrying, the opinion concludes, “harm and humiliate the children” of those couples by depriving them of both financial benefits and – even more importantly – “the recognition, stability, and predictability marriage offers.” The Court takes pains, however, to make clear that a right to marry is fundamental even for couples who cannot or do not want to have children. And more broadly, the Court continues, marriage is “a building block of our national community” in so many ways, from the moral support given to married couples to the legal benefits and rights that they enjoy. “There is no difference between same- and opposite-sex couples with respect to this principle,” the Court emphasizes.

The Kennedy opinion then takes on the principal rationale on which the lower court relied in upholding the state bans on same-sex marriage – the idea that the political process, rather than unelected judges, should be allowed to play out and decide this question. Kennedy begins by pushing back against the idea that it is, in essence, too soon to decide this question: there has already been, the opinion maintains, plenty of discussion of the same-sex marriage issue. The very reason that we have a Constitution, he stresses, is that some rights are too important to leave up to the democratic process. Moreover, same-sex couples should not have to wait to have their rights recognized: the husband of lead plaintiff Jim Obergefell, for example, has already died, and the children of same-sex couples are growing up without their parents being married.

The Kennedy opinion closes with an assurance that churches and other groups that oppose same-sex marriage on religious grounds can continue to express their views. But that pledge may not provide much legal protection for a florist who does not want to furnish flowers for a same-sex marriage ceremony, for example; we can expect the precise scope of this protection for religious beliefs to be the focus of lawsuits in the not-too-distant future. [...]

The usual suspects dissented, as you'd expect, including Scalia, who wrote:

If [...] 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.

Funny that. I would hide my head in a bag if I were a homophobic bigot.

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