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Analysis: Majority found fundamental right to same-sex marriage in 14th amendment

U.S. Supreme Court
The U.S. Supreme Court

The U.S. Supreme Court’s landmark decision recognizing a constitutional right of same-sex couples to marry traversed centuries of arguments about how the court should find new rights that are fundamental to individual liberty.

Justice Anthony M. Kennedy, writing for a five-justice majority, came down firmly on the side of a Constitution that grows with time and that recognizes the “dignity” and “autonomy” of the individual. He said it is the job of judges to identify and protect newly recognized fundamental rights that haven’t been enumerated in the Constitution.

“New insights” sometimes are required to reveal new rights because “the nature of injustice is that we may not always see it in our own time,” he wrote.

In the main dissent, Chief Justice John G. Roberts threw the litany of infamously activist judicial decisions at Kennedy. He and the other conservative dissenters said they weren't voicing an objection to same-sex marriage, just to the judicial tyranny of “five lawyers” imposing it on the country.

Married today; fired tomorrow?

As comprehensive and sweeping as the court’s opinion is, it left lingering questions. One is whether a same-sex couple could be married on Sunday and fired on Monday.

The answer is yes, for most states, said Marcia McCormick, a Saint Louis University law professor.

“This is the same answer that you would have gotten yesterday,” she said. “There is no federal statute clearly prohibiting discrimination in employment in the private sector on the basis of sexual orientation, so the only protections are through state laws. Twenty-two states and the District of Columbia have those laws.” That leaves 27 states where there is no legal protection for LGBTQ people when it comes to hiring or firing by private employers.

Pamela Merritt, of ProgressMissouri.org pointed out Friday that Missouri is one of the states without protections. “This decision means that all Missourians, regardless of their place of residence within the state, have the freedom to marry. That’s the good news. The bad news is that LGBT people in Missouri can still be fired from their jobs, evicted from their homes, and denied access to public accommodations and services. The Missouri General Assembly can fix this by passing the Missouri Nondiscrimination Act next session,” she said in a statement.

Kennedy emphasized that people retained their First Amendment right to have religious objections to same-sex marriages. But Roberts predicted future clashes with religion.

Among the open questions, Roberts wrote, is whether it is legal if “a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.” He noted that the top federal lawyer had acknowledged “that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.”

The political and legal fights in Indiana and Arkansas this past spring offered a preview of some of the questions that could arise if religious business people deny public accommodations to gays and lesbians – such as baking a wedding cake or serving as a wedding photographer.

Conservative playbook

Gregory Magarian, a Washington University law professor, said the dissenters made “their objections about process – ‘judicial tyranny’ – rather than contempt for LGBTQ people or relationships. ... They clearly had a playbook.”

Roberts marshaled more than 150 years of discredited decisions - beginning with the Dred Scott ruling that blacks could not be citizens - to blame the majority for an “extravagant conception of judicial supremacy” that “repudiates” the “county’s entire history and tradition.”

Roberts accused Kennedy of repeating the mistakes of the so-called “Lochner” era in the early 20th century when the court ruled that the liberty of contract required it to throw out hundreds of wage and hour laws passed to protect workers.

In Supreme Court lexicon, Lochner and Dred Scott are the equivalent of expletives.

But Magarian, a former Supreme Court clerk, said the dissenters’ efforts to blame the court for “judicial tyranny” were “utterly vacuous.”

He wrote in an email that “surprisingly, Chief Justice Roberts -- the sometime pragmatist -- has the hardest time … masking his rage, which pounds through his proceduralist facade like the beating of Poe's tell-tale heart.”

Magarian asked rhetorically whether the four dissenters – all of whom voted to recognize constitutional gun rights and the right of corporations to make unlimited political contributions – “really want to cloak themselves in fealty to the democratic process?” Both the gun decision and Citizens United campaign contributions decision threw out laws passed democratically.

Magarian said Kennedy’s “reasoning is important for its comprehensiveness. He explained marriage as a right with individual, communal and social dimensions. He grounds the right in both the Due Process Clause (the fundamental right to marry) and the Equal Protection Clause (the essential humanity of LGBTQ people and couples).

“Interestingly, (Kennedy) doesn't mention the dissenting opinions once, although he responds in substance to some of their arguments. His opinion marginalizes the four dissenters, but really they marginalize themselves.”

Both liberty and equality

McCormick, at Saint Louis University, thought it important that Kennedy anchored the court’s opinion in two parts of the 14th Amendment, the amendment ratified after the civil war: the Due Process Clause, which protects liberty from state intrusion, and the Equal Protection Clause, which bars discrimination by states.

In citing both due process and equal protection, the decision was reminiscent of the 1967 Loving v. Virginia decision, in which the court ruled that laws against inter-racial marriages violated the same two parts of the Constitution.

The Loving decision was at the center of the Kennedy’s argument that the country and the Constitution have recognized many changes in the institution of marriage over the centuries.

When the Constitution was written, “coverture” still was in effect. That meant that a married couple was  one legal entity with the man in control. As late as 1971, one state still established the man as the head of the household.

In more recent times, the court expanded the concept of marriage not only with the Loving decision, but with recognizing the right of prisoners to marry and the right of a man behind on his child-support to marry.

Roberts countered that none of these decisions was relevant because all defined marriage the way it uniformly was before 2000 – between a man and a woman.

Four justifications

Kennedy cited four justifications for recognizing same-sex marriage as a part of the liberty protected by the due process clause.

1. Individual autonomy: “The right to personal choice regarding marriage is inherent in the concept of individual autonomy,” he wrote. “...The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.

“There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”

2. Fundamental right: “The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals,” wrote Kennedy. “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

3. Protecting children from stigma: “It safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education."

Kennedy said that without same-sex marriage, the children of same-sex couples would suffer the “stigma of knowing their families are somehow lesser.”

4. Historic importance of marriage: “This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order,” he wrote. “Marriage remains a building block of our national community.”


The Supreme Court’s controversial decisions protecting the right of privacy were sprinkled throughout the decision - from the court’s recognition of a married woman’s right to contraceptives in 1965 to its recognition a few years later that unmarried women too had that constitutional right.

The privacy decision that Roberts mentioned, however, was Roe v. Wade, recognizing the abortion right.

Roberts quoted Justice Ruth Bader Ginsburg, one of the justices in the majority, who once said that the Roe decision may have caused a backlash by taking the issue of abortion out of the democratic arena too soon.

The chief justice predicted the same might be true of same-sex marriage.

“However heartened the proponents of same-sex marriage might be on this day,” he wrote, “it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.”

But Kennedy emphasized that constitutional rights are protected from democratic majorities who would take them away.

“The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right,” he wrote.

Kennedy no surprise

Roger Goldman, emeritus professor at Saint Louis University Law School, and Karen Tokarz, law professor at Washington University, said that Kennedy’s decision and language were not surprising given his decisions in previous cases involving gays and lesbians. Kennedy also played an important role in preserving an abortion right in a 1992 decision.

Wrote Tokarz: “With this decision, Justice Kennedy has now written four landmark gay rights opinions on the subject over the past two decades, including the 2013 Windsor decision, which overturned a ban on federal benefits for married same-sex couples. He has ushered in a new chapter in this country’s civil rights jurisprudence.

“He also authored Romer v. Evans, in 1996, which struck down a Colorado constitutional amendment that banned laws protecting gay men and lesbians, and Lawrence v. Texas, in 2003, which struck down laws making gay sex a crime.”

As unsurprising as Kennedy’s decision seems today, it would have been a great surprise when he was nominated, she said.

“This legacy was somewhat unimaginable when President Ronald Reagan nominated him to the Supreme Court in 1987. Prior to his appointment to the Supreme Court, Kennedy served for over a decade on the federal appeals court in California, where he voted against gay rights on at least four occasions. Some commentators suggest that his Supreme Court decisions reflect his growing commitment to individual liberty.”

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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