Justice Kennedy (joined by the so-called liberal wing of the Court -- Justices Ginsburg, Sotomayor, Kagan and Breyer) rejected the dissenters' view that states may be allowed to prevent gays and lesbians from getting married if a majority of its voters deem it so. And it resoundingly rejected an originalist view of the Constitution which holds that fundamental rights are only those explicit in that document's text:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning…
…in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.
This decision really should not have been much of a leap. Loving v. Virginia, which held that state laws banning interracial marriage were unconstitutional, provides a fairly unassailable precedent. And opponents of same-sex marriage have never been able to mount a legitimate argument that there is a compelling government interest in preventing gays and lesbians from marrying -- the showing required under the Court's own jurisprudence.
The fact that the decision was a narrow 5-4 victory-- with disingenuous and particularly vitriolic opinions from each of the four dissenters -- should give us all serious pause. According to Chief Justice Roberts, Justice Kennedy's carefully reasoned opinion was result-oriented and "had nothing to do with the Constitution." Justice Scalia's insult-laden diatribe described it as pretentious and incoherent, and alarmingly claimed that it represented a “threat to American democracy.” Justice Alito was mostly concerned with those Americans who want to be able to continue to discriminate against same-sex couples with impunity, fearing that this opinion "will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” And Justice Thomas, in rejecting that the right to marry is a fundamental right, went so far as to argue that the government is essentially incapable of taking away human dignity -- not by depriving people of government benefits, or holding them in internment camps or even enslaving them.
If John McCain had won the presidency in 2008, he certainly would have replaced the two retiring justices during his first term with two in the mold of those currently comprising the right wing of the Court, instead of President Obama's two appointees -- Justice Sotomayor and Justice Kagan. Among many other frightening results, this would likely have turned this landmark 5-4 victory into a 6-3 loss.
Every Republican running for president expressed their opposition to same-sex marriage and denounced the Supreme Court's decision. And under the guise of "religious liberty," every Republican candidate believes that business owners and others should be allowed to discriminate against same-sex couples.
Justice Ginsburg is 82; Justice Scalia is 79; Justice Kennedy is 78; Justice Breyer is 76.
There are many more battles ahead -- battles that will likely require litigation in federal court -- including those surrounding the push for federal anti-discrimination laws and anti-discrimination laws in the majority of states that don't bar discrimination against gays, lesbians and transgender people.
Elections matter.
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