June is the traditional month for weddings, and it remains the most popular month for marriages. It is also the traditional month for highly anticipated U.S. Supreme Court opinions. This June, the U.S. Supreme Court issued a ruling in Obergefell v. Hodges that all states must allow same-sex couples to marry under the same terms and laws available to opposite-sex couples, and that all states must recognize same-sex marriages performed by another state. This decision has continued to be the subject of widespread press coverage and commentary through the summer.
What does this mean for same-sex couples in Washington state? It means that they can now enjoy the same freedom to have their marriage recognized in any other state in the nation, something most opposite-sex couples no doubt take for granted. While our state legalized same-sex marriages in 2012, it was just the seventh in the nation to do so, and many states had laws on their books that refused to recognize lawful same-sex marriages performed in other states.
These laws had the result of prohibiting a widowed Ohio man from being listed as a surviving spouse on his spouse’s death certificate; prohibiting a Michigan couple from listing both spouses as parents on adoption certificates; and refusing to recognize an Army veteran’s marital status when he was assigned to work for the Army Reserve in Tennessee.
The Court’s majority opinion, written in plain language by Justice Kennedy, opens with an elegant essay on the “transcendent importance of marriage” – reading more like a marriage ceremony than a judicial opinion. It summarizes both the evolution of marriage and the history of the Court’s decisions protecting marriage as a Constitutional right before concluding that the right to marry is a fundamental right, and the Equal Protection and Due Process clauses of the Fourteenth Amendment of the U.S. Constitution protect a same-sex couple’s right to marry.
The majority and dissenting opinions in this case explicitly address the issue of same-sex marriage, but they also function to continue the ongoing debate among Justices in the Roberts court over the Court’s role in our nation’s government and how the Constitution is to be interpreted. In his analysis, Justice Kennedy notes that, “[t]he nature of injustice is that we may not always see it in our own times.” Further, “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” By contrast, in a characteristically salty dissent, Justice Scalia writes in a parenthetical aside:
Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.
While Justice Scalia’s writing is always entertaining, I, for one, am not persuaded by the underlying analysis. And I celebrated the Fourth of July glad that the majority of our nation’s Supreme Court agreed that freedom and liberty are not restricted to historic practices and ideas. If the present was doomed to be governed by historic practice, would the Court have granted inter-racial couples the right to marry in its unanimous 1967 decision in Loving v. Virginia? Would the Georgia statute providing that “the husband is the head of the family and the wife is subject to him” cited by Justice Kennedy in his opinion still be on the books?
I highly recommend the Court’s Obergefell decision as summer reading – it features a little romance, a little history, and a lively debate on the meaning of the fundamental personal freedoms protected by the Constitution.
Photo credit: Steven Damron on Flickr
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