A More Perfect Union

Few concepts are as fundamental to life, liberty and the pursuit of happiness as the right to marry the person of one’s choice. For those who love liberty and believe in the dignity of humankind, this has been a good week. The Supreme Court, in an eloquent opinion authored by Justice Anthony Kennedy, declared once and for all that marriage equality is the law of the land. “The right to marry is a fundamental right inherent in the liberty of the person,” wrote Justice Kennedy in Obergefell v. Hodges, “and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”

Obergefell is a logical extension of the 1967 Supreme Court decision in Loving v. Virginia, which ruled unconstitutional Virginia’s prohibition against interracial marriage. A watershed moment in American legal history, Loving called the freedom to marry “one of the ‘basic civil rights of man’” and recognized that the Fourteenth Amendment would be meaningless if the government could deprive an interracial couple the right to express their love in a lawfully sanctioned marriage simply on account of race. “Under our Constitution,” declared Chief Justice Earl Warren, “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

At the time of Loving, Virginia was hardly alone in outlawing interracial marriage. Indeed, many Americans believed that allowing blacks to marry whites violated God’s will and the laws of nature. Democracy had not yet caught up with more enlightened views of liberty and equality. And no one disputed that when the Constitution was first authored, in the days of Jefferson and Madison, when racial inferiority and slavery were acknowledged as the practical realities if not the principles of America’s founding documents, prohibitions against interracial marriage were the rule, not the exception.

But times and context change, as does society’s understanding of constitutional principles. By 1967, nearly 190 years after the nation’s founding, more than a century after Union forces fought and won a civil war, thirteen years after the Supreme Court in Brown v. Board of Education ruled segregated public schools unconstitutional, three years after Congress passed sweeping civil rights legislation outlawing segregated lunch counters and other public accommodations, times had most certainly changed. The Court brought us as a country to a deeper understanding of the Constitution’s core principles.

Nearly a half-century after Loving, many of the same arguments made against interracial marriage were made against same-sex marriage – that the issue of marriage rights is a matter best left to the states and the political process; and that such marriages are a radical departure from centuries-old notions of traditional marriage deeply embedded into the nation’s social fabric.

The beauty of the American Constitution, however, is that under its protections all citizens are granted the same rights and privileges regardless of majority sentiment or the whims of particular state governments. “The Constitution promises liberty to all within its reach,” Justice Kennedy wrote in Obergefell. The petitioners desired simply to enforce the Constitution’s promise of liberty, to uphold the dignity of marriage, and to respect its enduring value as an institution. “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect – and need – for its privileges and responsibilities.”

Justice Kennedy emphasized that the case was not about the right of “same-sex marriage,” but the right of same-sex couples to enjoy the same privileges and benefits granted opposite-sex couples. Just as the petitioners in Loving sought not a “right to interracial marriage” but a right to marry irrespective of race, the petitioners in Obergefell sought the right to marry irrespective of gender. In each case, the petitioners sought “the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.”

Although public opinion in recent years has advanced rapidly in favor of marriage equality, there remain Americans who disagree with same-sex marriage on the grounds of sincerely held religious beliefs and long-held notions of traditional marriage. These Americans have the freedom to believe and speak as they wish. “But when that sincere, personal opposition becomes enacted law and public policy,” instructed the Court, “the necessary consequence is to put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”

To prohibit same-sex marriage violates the dignity and liberty of the couples affected. To recognize same-sex marriage causes no recognizable harm, restricts no one’s liberties, and violates no one’s rights. “The limitation of marriage to opposite-sex couples may long have seemed natural and just,” noted Justice Kennedy, “but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

The four dissenting justices in Obergefell contended in different ways that the Court’s decision was an attack on democracy, an invalid exercise in policy making by five unelected justices; in short, full-fledged judicial activism. Although the view that the courts should generally defer to the elected branches is a defensible position, the four dissenters have been highly selective in their applied deference to democratically enacted laws. By overruling congressional attempts to regulate money in politics (Citizens United) and imposing restrictions on the availability of guns (District of Columbia v. Heller), the dissenting justices have secured a solid footing in the judicial activist camp.

For Justice Antonin Scalia, the answer to the question presented in Obergefell was simple: “When the 14th Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” But if Scalia’s reasoning is correct, then it logically follows that state-sanctioned racial segregation in education and housing are constitutionally permissible despite modern understandings of the Fourteenth Amendment.

Though history and tradition are important to constitutional interpretation, the Constitution does not require that we apply 18th century morality and values to 21st century controversies. “The nature of injustice is that we may not always see it in our own times,” wrote Justice Kennedy. “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. . . . 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.”

In rendering constitutional decisions and interpreting open-ended phrases such as “liberty” and “equal protection,” value judgments are a given. It is why the power of the President to nominate Supreme Court Justices is so important. There are no neutral principles that allow Justices to adjudicate basic questions of political morality and the essence of liberty, equality, and the claims of minorities in a democratic society. Ever since Marbury v. Madison, when the doctrine of judicial supremacy took hold and the Supreme Court was established as the final arbiter of the Constitution’s meaning and effect, it has been the proper role of the judiciary to interpret and apply the Constitution in the context of the changing times in which we live. Indeed, the meaning and understanding of core concepts may change or expand as society progresses, technology advances, and the course of history unfolds.

As James Madison insisted in The Federalist Number 10, democratic legitimacy requires that the interests of minorities be protected against majorities who deny or unfairly discount their rights and interests. In Democracy and Distrust (Harvard University Press, 1980), constitutional scholar John Hart Ely explained, “the duty of representation that lies at the core of our system requires more than a voice and a vote. No matter how open the process, those with most of the votes are in a position to vote themselves advantages at the expense of others . . .” Democracy is thus enhanced when the courts closely scrutinize laws that disadvantage minorities long victimized by prejudice and discrimination.

In the end, the majority opinion in Obergefell was a simple statement of human equality, dignity, and individual liberty that should be celebrated by all:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. 

Obergefell will rightly go down as a seminal decision in American constitutional law. It is one for the ages. As an American, I am proud of our Supreme Court and of our country, for we have come one step closer to “a more perfect Union,” a nation based on tolerance and understanding, and that embraces liberty and justice for all.