By Tom Cushing
The Heart of the ConstitutionUploaded: Jun 26, 2015
"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 they once 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 that 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. It is so ordered."
-- Justice Anthony Kennedy, for the majority in Obergefell v. Hodges
So concludes an opinion that is remarkable for its empathy, indeed its soul. Throughout its demolition of the arguments against same-sex marriage, the court's appreciation of the law's impacts on actual living, loving people is never far from center-stage. As such, it reaffirms the Constitution's role as the best hope for vindicating the legitimate rights ? the place in society -- of those who will never command a majority at the polls. And in so doing, it strengthens the rights we all enjoy.
The route to this opinion begins generally with the 20th century ascension of the Equal Protection guarantee that is evident in earlier cases on civil rights broadly, and marriage in particular. The 1967 case of Loving v. Virginia, for example, overturned traditional state law bans on interracial marriage. The fact that such a case seems quaint less than 50 years hence is a testament to the awakening of this culture to the demands for inclusion of previously marginalized Americans.
Not that the path has been easy. The 1996 case that most underpins today's ruling, Romer v. Evans, arose out of backlash ? a successful Colorado state referendum that precluded homosexuality from ever becoming a characteristic protected from discrimination in such areas as employment or housing. There, Justice Kennedy found no rational basis for that law, rooted as it was purely in animosity against a disfavored minority. As such, Equal Protection demanded its nullification.
Then in Lawrence v. Texas, the Court overturned anti-sodomy laws as an invasion of privacy, and noted on Equal Protection grounds that although those laws by their terms banned all such adventures, they were uniformly enforced only against gay participants. Even Justice Scalia saw the writing on the wall: "Here comes gay marriage" he predicted correctly, in dissent.
The font on that writing went bold two years ago, in the culmination of cases challenging Prop 8 here, and the federal Defense of Marriage Act. Still, the Court expressed a preference for letting the issue simmer at the state legislative level, timidly delaying justice for fear that the country might not be ready for it, quite yet. Today's ruling finally completed this part of the journey.
Much has been made of the speed with which this issue has ascended to greater than 60% popular approval, nation-wide, in the latest polling. This weekend's Pride festivities will precisely mark some 46 years since the Stonewall Riots defined the gay rights movement. I think the media might better celebrate the courage and conviction of those who stood-up and identified as gay. 'The closet' is an apt metaphor because it's easy to stay in it, avoiding the opprobrium of those who favor status offenses.
And I think a shout-out goes to supportive, card-carrying heterosexuals like David Boies and Ted Olsen. Those two advocates saw the opening provided by Romer and Lawrence, and devoted their legal mastery to unhinging the opposition from any claims to rational bases. Their work finds expression in today's opinion. I would also note that speed is best viewed through the eyes of those affected. Forty-six years is a long time to wait to get married ? more than a lifetime for some folks.
America will always chase its ideals, but today we caught one. Good for the LGBT community, and good for everybody else. It's a good day for Pride, in America.