The Supreme Court issued a landmark ruling Friday that would have been unimaginable to Americans a mere decade ago. Never before in our history has a change in a fundamental and universal element of life come so quickly.
Approve or disapprove, this moment in history is truly without precedent.
This conservative Supreme Court has legally consummated same-sex marriage, a concept that was certainly unheard of for 95 percent of America in 2000. When it did become a public issue, the idea of same-sex marriage, to a majority of Americans, quickly morphed from something weird to uncomfortable to threatening to harmless to acceptable to fair to just. And now it is the law.
Justice Anthony Kennedy was the swing vote in the 5-4 decision and has been a slow, steady usher for this milestone. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote in the majority opinion. “[The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right."
That is absurd and despotic, the dissenters countered. The Constitution has absolutely nothing to say about what a marriage is or isn’t, what it should or shouldn’t be, they argued. Such decisions aren’t up to appointed judges, they said, but rather up to the citizens in a democracy, through their elected representatives.
“But this Court is not a legislature,” Chief Justice John Roberts wrote in the lead dissent. “Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”
Justice Antonin Scalia was scorching on this point in his dissent. “But what really astounds is the hubris reflected in today’s judicial Putsch,” he pronounced. Scalia snidely continued:
“These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”
Despite this assault, the Court’s majority ruled that same-sex marriage is protected by the Constitution in two ways; the freedom to marry who one wishes is itself a fundamental right and the right of two people of the same sex to marry deserves protection equal to any traditional, heterosexual marriage.
"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 character protecting the right of all persons to enjoy liberty as we learn its meaning."
No, no, no Scalia responded. This is judicial hubris that robs the people – the citizens, the voters, the states – of their right to make these laws, to decide these issues where the Constitution stakes no claim.
“With each decision of ours that takes from the People a question properly left to them--with each decision that is unabashedly not based on law, but on the 'reasoned judgment' of a bare majority of this Court--we move one step closer to being reminded of our impotence,” Scalia wrote.
That’s just wrong, Kennedy wrote. First of all, voters and legislatures in many states have approved same-sex marriage. The people and the states have debated it vigorously for years. Moreover, Kennedy writes, “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”
Roberts was more measured than Scalia, but equally outraged. “In short, our Constitution does not enact any one theory of marriage,” he wrote. “The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”
What they are not free to do, Kennedy and the majority ruled, is to democratically pass laws that are unconstitutional. He opened his opinion, which reads like a treatise on history, sociology and moral philosophy, this way, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”
This is trendy academic drivel, according to Scalia’s unusually snarky opinion:
"If… I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."
It doesn’t sound like Scalia and Kennedy will be going out for Chinese food anytime soon.
The chief justice, by contrast, ended on a note that was generous yet defiant:
"If you are among the many Americans--of whatever sexual orientation--who favor expanding same-sex marriage, by all means celebrate today's decision. 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."
Celebrating is exactly is what millions of Americans are doing now. This ruling does not, obviously, eliminate all discrimination against gay people – not even all forms of legal discrimination. There will be lawsuits, rear-guard legislation, opposition from religious organizations, bigotry on talk radio, bombast from right-wing populists and plain old everyday prejudice.
But if the polling is right, a clear majority of Americans will approve of the ruling. And this is a stunning shift in public opinion.
Most Americans, polls also show, have sympathy with both sides.
Change this swift to something as basic as marriage is bound to be disorienting and worrisome for many people, not just right-wingers and mean people but to squares, religious people, traditionalists and those who are simply and understandably freaking out by how fast everything changes in the 21st century.
Today’s milestone decision might also be a moment of some civic pride for people who were once confused and ambivalent about same-sex marriage, who changed their minds, but with uncertainty. “Today we can say in no uncertain terms that we have made our union a little more perfect,” President Obama said.
Away from civil rights battlefields, it will be interesting to see if this is a moment that will more broadly change the tenor of American politics and help wind down the much-hyped social battles we call the Culture War.
The same-sex marriage dispute is essentially over. Issues like prayer in school and “family values” don’t come up in campaigns anymore. The mix of attitudes on abortion hasn’t changed in years and years, but the law is settled and the smoke has mostly cleared. The same dynamic describes views on gun control.
But the white, evangelicals who powered the Religious Right are shrinking as a percentage of the electorate. More and more Americans, especially young people, say they have no religious affiliation. The electorate will grow more and more diverse inexorably for the foreseeable future.
If the Culture War does de-escalate into a kinder, gentler civic culture, even those who feel like they’re on the losing side might some day bear less antipathy to the “other” America. And perhaps today’s winners will, too.