There are quite a few diaries on different aspects of yesterday’s Supreme Court ruling on Marriage Equality, In this diary I would like to somewhat dissect and discuss some of what I consider to be Justice Kennedy’s most memorable statements and what they personally mean to me and I suspect to a great many other LGBT people and to our supporters.
To be sure this case will likely be the most important Civil Rights case of this century and will be taught to history students across America and beyond. In particular I think a lot of concentration will be put on teaching about Justice Kennedy’s majority opinion.
Full Supreme Court ruling
Follow below the fold to read these quotes and a further discussion on just how important they are and why.
Quotes from page 9:
Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order.
Here Justice Kennedy addresses claims by many who are against Marriage Equality who state that allowing same-sex couples to marry will demean the institution of marriage.
He goes on to say:
But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.
Kennedy emphatically refutes that claim and puts it out to pasture once and for all.
And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
This is of particular importance to me because it clearly shows that Justice Kennedy does not buy the debunked myth that LGBT choose their sexual orientation. He clearly accepts and believes when the experts say that sexual orientation is immutable and that attempts to change it are often dangerous.
From page 11:
DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.
Here Justice Kennedy acknowledges the wrongness and burden placed on our military service members who fight to protect the freedom of American citizens enshrined in the Constitution and yet are themselves treated as 2nd class citizens!
As a veteran myself who served 10 years in the United States Air Force this has even more heartfelt meaning.
From page 13:
Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.
Justice Kennedy calls out the wrongness of prior cases which upheld state laws that criminalized same-sex intimacy. It speaks to the history of legal discrimination and persecution that LGBT people have suffered with throughout American history.
From page 16:
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. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
This one is one of the best arguments for why the Constitution is and must be a
Living document.
Personally I think he is correctly acknowledging that taking an originalist view of the Constitution like Scalia does for example, would have the effect of hamstringing future generations and denying Civil Rights to future American citizens until they go through the painful and long + difficult process of explicitly amending the Constitution to grant them their rights. IMHO, this idea is counter to what the framers intended.
From page 19:
But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.
Simply beautiful! Once again Kennedy acknowledges that homosexuals have suffered a history of legal discrimination and persecution and that overturning one barbaric law of persecution is not and
cannot be the end game!
From page 20:
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.
Here Kennedy proves that he recognizes that denying same-sex couples their fundamental right to marry not only harms the couple, but just as importantly harms any children of that couple!
From page 22:
These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.
Kennedy showing recognition of some of the many ways those same-sex couples and their children are harmed by denying them their fundamental right to marry.
From page 24:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, 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. 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.
Kennedy stating emphatically that the separation of church & state is of paramount importance and whose principle simply must be upheld and enforced – religious beliefs simply have no place in a legal discussion concerning the Civil Rights of American Citizens!
From page 27:
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.
I love this one.
Grave and continuing harm. Well stated and very clear as to one of the most important reasons that these marriage bans simply cannot be upheld!
From page 29:
Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.
In other words, to the bigots and anti-gay people out there, fundamental rights should not ever be allowed to be abridged and force the victims through a long and difficult process of legislative change!
That principle is highlighted even more with the following:
This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.
From page 31-32:
The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.
Justice Kennedy eviscerates the ludicrous claim of the anti-LGBT crowd who say that harm to opposite-sex couples will occur as a result of allowing same-sex couples to marry!
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
Very nice closing statement by Kennedy writing for the majority opinion of the court!