Supreme Court rules 5-4 that same sex marriage is a constitutional right

The Washington Post reports:

A deeply divided Supreme Court on Friday delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live.

The court’s action rewarded years of legal work by same-sex marriage advocates and marked the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence.

Marriages began Friday in states that had previously thwarted the efforts of same-sex couples to wed, while some states continued to resist what they said was a judicial order that changed the traditional definition of marriage and sent the country into uncharted territory. As of the court’s decision Friday morning, there were 14 states where same-sex couples were not allowed to marry.

Justice Anthony M. Kennedy, who has written all of the court’s decisions recognizing and expanding gay rights, said the decision was based on the fundamental right to marry and the equality that must be afforded gay Americans.

“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Kennedy wrote. He was joined in the ruling by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

I have mixed feelings on this. I welcome the outcome, but not the method.

I think it great that all Americans now have the right to marry the person they love (with rare exceptions such as family). And to have the US Supreme Court rule that gay Americans have a constitutional right to marry their loves ones, with mean a huge amount to gay Americans.

So just as I fought hard for to be legal in New Zealand, I welcome it in the .

All four of the court’s most conservative members — Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented, and each wrote a separate opinion.

The common theme in their dissents was that judicial activism on the part of five members of the court had usurped a power that belongs to the people.

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” wrote Roberts, who for the first time in his tenure marked his disagreement with a decision by reading part of his dissent from the bench.

“Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it,” he wrote.

Scalia called the decision a “threat to American democracy,” saying it robs citizens of “the freedom to govern themselves.”

I do agree with the Conservative Justices though that while the outcome is to be celebrated, the process is not. I think it is a stretch to claim that a document written 200 years ago was intended to allow same sex marriage – considering same sex activity was a criminal offence at the time.

Having a court of nine appointed judges decide on such a massive issue, makes it less likely to gain widespread acceptance than a decision made by referendum or an elected legislature.

The wonderful result in Ireland, where a staunchly Catholic nation voted to legalise same sex marriage was the best way for it to happen. No one could attack the legitimacy of the decision. No one could say it was out of touch politicians or activist judges. In fact having the public vote it in, sent a message to religions that if they want to retain followers, they may have to change with the times.

In the US, it was elected legislatures that gave women the vote. This made it far less controversial, than if the US Supreme Court had done it (which inevitably they would have). By contrast the reason abortion is such a massively controversial issue in the US, is because the Supreme Court decided it for the whole country, rather than let voters or elected legislatures decide. That resentment is why it is such a toxic issue today.

However I think this ruling will be less controversial over time. That is mainly because so many states had already legalised same sex marriage, and public opinion on same sex marriage had dramatically changed over a decade – possibly the largest change on a social issues ever in such a small period of time.

Another difference between the controversy over the abortion Roe vs Wade ruling and this one, is that with same sex marriage, the opponents of it are not directly affected. Yes they think it is wrong, but it is hard to point to a concrete harm except a generic changing of society’s morals. However with abortion, opponents believe that an eight week old foetus is living human being, and that abortion is not far removed from murder.

So I think it is unlikely that in a few years, this will be an issue at all in US politics. In fact some analysts are saying (and I agree) that this has done Republican politicians a favour as they can now say that the issue is settled regardless of their personal views, and don’t have to worry about being off side with a large majority of the population.

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