Yesterday was an epic day — and truly unexpected in many ways. The United States Supreme Court, by a 5-4 majority, ruled that the Due Process and Equal Protection clauses of the United States Constitution requires the invalidity of the remaining bans on same-sex marriage. In a nutshell, the Justices states that access to marriage – with the partner of one’s own choice – is an essential element of the right to autonomy and liberty, guaranteed by the Constitution. The Justices also ruled that marriage is an essential right in our society, and then went on to say that marriage is the best way for families to be formed – for the protection of the family and the children.
Here’s a link to the ruling:
The decision is landmark in many respects. It looked beneath the explicit language of the Constitution to make this ruling, and didn’t just search for explicit words in the text of the document to justify its decision. The ruling also made it clear that distinguishing between straight and gay couples in legislation really has no lawful basis – which may lead to other positive legal rulings in the future. It also reinforced the notion that gay couples really aren’t trying to change society – in fact, they stressed that the couples wanting to get married were upholding the most traditional values of American society.
The dissents made several points which are not so easily dismissed. For the most part the dissenting opinions focused on the absence of any express provision in the Constitution that talks about the freedom to marry or the right to autonomy when it comes to choice of marital partner. Technically they are correct – but from a political and moral standpoint, they are wrong in my opinion. It is true that the Court reached beyond technical provisions of the Constitution, but that is what the Court is supposed to do! Their second main point was that this decision should have been left to the legislatures of each state, not “dictated” by the Court. The majority opinion tackled that issue correctly, by saying that when it comes to guaranteeing fundamental rights, claimants should not have to wait for the political process. This issue goes to the heart of what the role of the Supreme Court should be. And by the way, the same justices who authored these dissents often support quite radical rulings, vetoing legislative actions, when it serves their political purposes.
The big question now is what’s next. There will likely be some minor skirmishes around the issue of providing services to same-sex couples – -the “wedding cake” conflicts. In some arenas there may be some carve-outs; most likely any religious-oriented service or activities will be able to exclude same-sex couples, such as religious marriage halls or officiants. At the other end of the spectrum are public facilities, which certainly cannot discriminate against gay couples. In between are the small scale private providers of commercial services, such as cake and flower and photographic services. Under the law in most states these providers cannot discriminate against any customer, but many states are trying to enact laws that give them that option.
But what’s more important is how this ruling affects our own community. Will this open the door for further extensions of liberation – helping transgender folks, bullied youth in small towns and rural areas, LGBT refugees from other countries seeking a safe haven here? Or, will it lead to a complacency amongst the mainstream gay organizations and donors, feeling that the battles have all been won and the troops can take a well-deserved rest? Time will tell.