Obergefell v. Hodges - Part 4, Post-Decision Commentary

On June 26, 2015, the Supreme Court released its much anticipated decision on gay marriage.  There weren't many surprises, Justice Kennedy delivered the opinion of the Court, and each of the Justices in the Conservative wing of the Court issued sharply worded dissents.  The only minor surprises to my mind were that there had been some speculation that Chief Justice Roberts would vote with the majority, which didn't happen, and Justice Scalia's dissent was perhaps even more sarcastic and mean-spirited than expected.

In this blog, I will talk about the wide range of articles and topics that that have addressed the ruling since it was released.

Atmosphere at and around the Supreme Court

According to Adam Litak's New York Times article:

As Justice Kennedy finished announcing his opinion from the bench on Friday, several lawyers seated in the bar section of the court’s gallery wiped away tears, while others grinned and exchanged embraces.

Justice John Paul Stevens, who retired in 2010, was on hand for the decision, and many of the justices’ clerks took seats in the chamber, which was nearly full as the ruling was announced. The decision made same-sex marriage a reality in the 13 states that had continued to ban it.

Outside the Supreme Court, the police allowed hundreds of people waving rainbow flags and holding signs to advance onto the court plaza as those present for the decision streamed down the steps. “Love has won,” the crowd chanted as courtroom witnesses threw up their arms in victory.

According to SFGate:

As [Kennedy] read his opinion, spectators in the courtroom wiped away tears when the import of the decision became clear.  One of those in the audience was James Obergefell, the lead plaintiff in the Supreme Court fight.

Outside, Obergefell held up a photo of his late spouse, John Arthur, and said the ruling establishes that "our love is equal."  He added, "This is for you, John"....

The crowd in front of the courthouse at the top of Capitol Hill grew in the minutes following the ruling.  The Gay Men's Chorus of Washington, D.C., sang the "Star-Spangled Banner."  Motorists honked their horns in support as they passed by the crowd, which included a smattering of same-sex marriage opponents.

The Washington Post wrote:

There were wild scenes of celebrations on the sidewalk outside the Supreme Court.  Same-sex marriage supporters had arrived early, armed with signs and rainbow flags.  They cheered at the announcement of a constitutional right for gay marriage, which did not legally exist anywhere in the world until the turn of this century.  The first legally recognized same-sex marriages in the United States took place just 11 years ago, the result of a Massachusetts state supreme court decision.

Jim Obergefell, who became the face of the case, Obergefell v. Hodges, when he sought to put his name on his husband’s Ohio death certificate as the surviving spouse, said, “Today’s ruling from the Supreme Court affirms what millions across the country already know to be true in our hearts: that our love is equal.”

“It is my hope that the term gay marriage will soon be a thing of the past, that from this day forward it will be, simply, marriage,” he said.

Moments after the Supreme Court announced its decision, President Obama called Obergefell:

"We're really proud of you," Obama could be heard saying over speaker phone, while [Obergefell] was being interviewed by CNN's Pamela Brown on the steps of the Supreme Court.  "Just know that, you know, not only have you been a great example for people, but you're also going to bring about a lasting change in this country.  And it's pretty rare where that happens. So I couldn't be prouder of you and your husband. God bless you."

Visibly flustered, Obergefell expressed his appreciation for Obama's support. 

"I really appreciate that, Mr. President. It's really been an honor for me to be involved in this fight and to have been able to, you know, fight for my marriage and live up to my commitments to my husband," he said.

The White House later released video of President Obama's side of the conversation.

Minutes later, Obama gave more official remarks celebrating the ruling from the White House Rose Garden.

In his remarks at the Rose Garden, Obama said:

Our nation was founded on a bedrock principle that we are all created equal.  The project of each generation is to bridge the meaning of those founding words with the realities of changing times -- a never-ending quest to ensure those words ring true for every single American.  
Progress on this journey often comes in small increments, sometimes two steps forward, one step back, propelled by the persistent effort of dedicated citizens.  And then sometimes, there are days like this when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.  
This morning, the Supreme Court recognized that the Constitution guarantees marriage equality.  In doing so, they’ve reaffirmed that all Americans are entitled to the equal protection of the law.  That all people should be treated equally, regardless of who they are or who they love. 

This decision will end the patchwork system we currently have.  It will end the uncertainty hundreds of thousands of same-sex couples face from not knowing whether their marriage, legitimate in the eyes of one state, will remain if they decide to move [to] or even visit another.  This ruling will strengthen all of our communities by offering to all loving same-sex couples the dignity of marriage across this great land....

This ruling is a victory for Jim Obergefell and the other plaintiffs in the case.  It's a victory for gay and lesbian couples who have fought so long for their basic civil rights.  It’s a victory for their children, whose families will now be recognized as equal to any other.  It’s a victory for the allies and friends and supporters who spent years, even decades, working and praying for change to come.

And this ruling is a victory for America.  This decision affirms what millions of Americans already believe in their hearts:  When all Americans are treated as equal we are all more free.... 

I know change for many of our LGBT brothers and sisters must have seemed so slow for so long.  But compared to so many other issues, America’s shift has been so quick.  I know that Americans of goodwill continue to hold a wide range of views on this issue. Opposition in some cases has been based on sincere and deeply held beliefs.  All of us who welcome today’s news should be mindful of that fact; recognize different viewpoints; revere our deep commitment to religious freedom.  

But today should also give us hope that on the many issues with which we grapple, often painfully, real change is possible.  Shifts in hearts and minds is possible.  And those who have come so far on their journey to equality have a responsibility to reach back and help others join them.  Because for all our differences, we are one people, stronger together than we could ever be alone.  That’s always been our story. 

We are big and vast and diverse; a nation of people with different backgrounds and beliefs, different experiences and stories, but bound by our shared ideal that no matter who you are or what you look like, how you started off, or how and who you love, America is a place where you can write your own destiny.

We are a people who believe that every single child is entitled to life and liberty and the pursuit of happiness.  

There’s so much more work to be done to extend the full promise of America to every American.  But today, we can say in no uncertain terms that we’ve made our union a little more perfect.  

That’s the consequence of a decision from the Supreme Court, but, more importantly, it is a consequence of the countless small acts of courage of millions of people across decades who stood up, who came out, who talked to parents -- parents who loved their children no matter what.  Folks who were willing to endure bullying and taunts, and stayed strong, and came to believe in themselves and who they were, and slowly made an entire country realize that love is love.

What an extraordinary achievement.  What a vindication of the belief that ordinary people can do extraordinary things.  What a reminder of what Bobby Kennedy once said about how small actions can be like pebbles being thrown into a still lake, and ripples of hope cascade outwards and change the world.  

Those countless, often anonymous heroes -- they deserve our thanks.  They should be very proud.  America should be very proud.

Reaction of the Pundits

Most lauded the ruling, although a few questioned its legal reasoning, and some even criticized it.

In the New York Times, the editorial board wrote:

To the list of landmark Supreme Court decisions reaffirming the power and the scope of the Constitution’s guarantee of equal protection under the law — from Brown v. Board of Education to Loving v. Virginia to United States v. Windsor — we can now add Obergefell v. Hodges.

In a profound and inspiring opinion expanding human rights across America, and bridging the nation’s past to its present, Justice Anthony Kennedy wrote: “The right to marry is a fundamental right inherent in the liberty of the person, 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.”

As news of the ruling came out on Friday morning, opponents of same-sex marriage struggled to fathom how the country they thought they understood could so rapidly pass them by. But in fact the court’s decision in Obergefell fits comfortably within the arc of American legal history.

As Justice Kennedy explained, the Constitution’s power and endurance rest with its ability to evolve along with the nation’s consciousness....

For gays and lesbians who have waited so long for the court to recognize their relationships as equal to opposite-sex relationships, it was a remember-where-you-were-when moment....

As gratifying as Friday’s ruling is, it is important to remember that equality was won by a single vote.  Meanwhile, the dwindling number of Americans who oppose same-sex marriage have shifted tactics to rely on so-called religious-freedom laws, which they say allow them to decline to provide business services for same-sex weddings....

More than four decades ago, a male couple in Hennepin County, Minn., applied for a marriage license and was denied. When their lawsuit reached the Supreme Court, the justices dismissed it “for want of a substantial federal question.”

According to the Washington Post Editorial Board:

IN ISSUING on Friday one of the most significant rulings of this century, the Supreme Court didn’t stake out the strongest legal grounds available to it — but it got to the just result, finding that the 14th Amendment requires states to license same-sex marriages.  This is a signal moment in the advancement of civil rights, one that will not come without disagreement and controversy, but one that the country is ready for....

[T]he fact that it’s foreseeable to Mr. Roberts that same-sex marriage bans would fall, state by state, to popular pressure shows how far the country has come, and quickly.  In states where lower courts had already ordered same-sex marriages to commence, the transition has been generally calm.  We expect to see the same maturity and acceptance across the country now. 

That doesn’t mean everything will be easy.  The court has opened some new questions.  For example, will religious schools lose their tax-exempt status if they don’t recognize same-sex marriages?  Judges might have to decide.  The court also couldn’t answer many open questions regarding rights for gay men and lesbians, particularly about whether it should be legal for employers to fire people based on their sexual orientation or whether businesses should be able to refuse service to same-sex couples.  Elected lawmakers will have to make these calls. 

After Friday, though, one can be forgiven for feeling a sense of inevitability about civil rights for gay men and lesbians.  Future generations will wonder how, in an advanced society with a devotion to equal treatment under the law, they could ever have been denied.

Jonathan Capehart:

In three majority opinions spanning 12 years, Supreme Court Justice Anthony Kennedy gave dignity to the lives of lesbians and gay men. His rulings respected their struggle for full inclusion in the American Dream and opened its doors to them. And with each successive decision, Kennedy presented the aspirations of gay and lesbian Americans not as a claim to special rights, but to equal rights....

In his 28-page majority opinion in Obergefell v. Hodges, Kennedy made our nation more whole, more free, more equal, more just.

[Certain of Kennedy's words in his opinion are] an exclamation point on the joy rippling across the nation.  The Supreme Court caught up with a nation that has signaled for years that it supported the right of same-sex couples to marry.  A nation that has witnessed a breathtaking and positive sea change in its overall support for the equal protection under the law of lesbian, gay, bisexual and transgender (LGBT) Americans.  This is not the United States that saw the FBI launch a “sex deviates” program (1951-1978) to rid the federal government of gay people.  This is not the United States that saw a federal official declare gay men “uniquely nasty.”  Thank God.

But work remains to be done.  Same-sex couples in 28 states can marry on Sunday and lose their jobs, homes and children on Monday.  The Supreme Court decision doesn’t address that.  Eliminating the sting of discrimination for LGBT Americans is the next fight.  A fight made more possible to win thanks to today’s landmark ruling.  Thanks to Justice Kennedy.

Debra J. Saunders, in the American Spectator, said:

San Francisco spent the weekend celebrating this victory for gay and lesbian couples.  For good reason: This gay-friendly city moved public opinion to the point that a majority of Americans supports same-sex marriage.  The days and nights of cowering in a closet are over.

Consider how quickly and overwhelmingly public opinion shifted.  In 2000, 61 percent of California voters approved a ballot measure that limited marriage to one man and one woman.n After [the city clerk] turned City Hall into a chapel of love in 2004, 14 states banned same-sex marriage and Sen. Dianne Feinstein, D-Calif., concluded the San Francisco weddings were “too much, too fast, too soon.”  Hillary Rodham Clinton and Sen. Barbara Boxer defined marriage as a union between a man and a woman....

In May 2008, the California Supreme Court overturned the state’s same-sex marriage ban by a 4-3 vote.  From City Hall’s steps, Newsom famously crowed, “This door’s wide open now.  It’s going to happen, whether you like it or not.”

Months later, 52 percent of California voters approved a constitutional measure to ban same-sex marriage. The state Supreme Court upheld the will of the voters, but federal courts overturned Proposition 8.

I always thought advocates should put a measure to legalize same-sex marriage on the ballot — add in protections for religious objections and a ban on polygamy and they would have had my vote with a smile.  Often, however, culture doesn’t change in neat steps as you think it should.  So I celebrate that gay and lesbian friends, as well as their children, feel more secure in the eyes of the law.  Yes, they are loved.

The romantic in me rejoices.  The lover of states’ — and voters’ — rights mourns.  I cannot celebrate five judges imposing their view of marriage by fiat.  I cannot ignore that Kennedy waited to do so until same-sex marriage was popular.  Public opinion can turn on a dime.  Not long ago, Barack Obama and Hillary Clinton opposed same-sex marriage when that view was popular.  Now that same position makes someone a “hater.”  I wonder:  What punishment will the five potentates impose on the newly politically unpopular?

Ilya Somin also lauded the result and, like Saunders above, criticized the reasoning:

Today’s Supreme Court decision on same-sex marriage is a great result, but based on dubious reasoning.  It is undoubtedly a momentous occasion for gays and lesbians around the nation.  In a comparatively short time, they have moved from being a widely despised minority whose intimate relationships were criminalized in many states, to full marriage equality around the country.

For gays and lesbians seeking the right to marry and for many of us who have supported their cause, the result in today’s case matters more than the reasoning. But the Court’s legal reasoning also deserves attention, both because it is important in its own right, and because it establishes a precedent for future cases.  Unfortunately, much of Justice Anthony Kennedy’s majority opinion is based on dubious and sometimes incoherent logic.

Gay rights advocates have advanced several different rationales for a constitutional right to same-sex marriage.  In my view, the strongest is that laws banning same-sex marriage discriminate on the basis of sex, much like laws banning interracial marriage discriminate on the basis of race – a position defended in an amicus brief I coauthored with Prof. Andrew Koppelman.  But some of the other rationales for a right to same-sex marriage are also plausible, particularly the theory that laws banning it engage in unconstitutional discrimination against gays and lesbians.

Unfortunately, Justice Kennedy’s majority opinion doesn’t clearly endorse any of the various arguments previously advanced for a right to same-sex marriage, even as it to some degree nods at all of them.  The result is a far from satisfying majority opinion.

Kennedy first emphasizes that the right to marriage is a “fundamental right” protected by the Due Process Clause of the Fourteenth Amendment.  The Court has indeed long held that marriage is a fundamental right...  But the standard test for identifying a fundamental right under the Due Process Clause is that the right must be “deeply rooted in this Nation’s history and tradition.”  It’s hard to argue that the right to same-sex marriage is deeply rooted in this way, given that it did not exist in any state until 2003.

Kennedy’s response to this fairly obvious point is that “[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.  This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.”  This is true.  But the reasoning of the previous decisions Kennedy refers to was either based in large part on the Equal Protection Clause (as in the case of interracial marriage), or focused on a right that at least was not so universally denied as the right to same-sex marriage (e.g. – in the case laws criminalizing intimate homosexual relations).

Kennedy’s analysis of the Due Process Clause issue also tries to cabin the scope of his reasoning by emphasizing that the fundamental right to marriage is limited to a “two-person union unlike any other in its importance to the committed individuals.”  This appears to foreclose the possibility that the right to marriage includes polygamous unions.  But the basis for this limitation is not clearly explained.  If fundamental rights are not “defined by who exercised them in the past,” then why should they be defined by the number of people involved in the union in question?

Kennedy, however, does not rely on Due Process Clause reasoning alone.  He instead tries to connect the Due Process Clause with the Equal Protection Clause, arguing that the two are inextricably linked....

In this case, due process and equal protection are fused because a fundamental right is being denied in part because of invidious discrimination against gays and lesbians.

Much of this is surely true as a matter of historical fact.  The longstanding exclusion of gays and lesbians from the right to marry was surely linked to the severe prejudice against them, and the many injustices they were subjected to. It is also true that exclusion from marriage harms gays and lesbians in a variety of ways.

But, usually, even laws that harm people severely get only minimal “rational basis” scrutiny under the Equal Protection Clause, a highly permissive standard of review that laws banning same-sex marriage could likely pass.  Discriminatory laws are only subject to a higher level of scrutiny if they are based on a “suspect classification” such as race or sex.  Gay rights advocates, myself included, have long argued that laws banning same-sex marriage do in fact discriminate on the basis of sex, and should be invalidated for that reason.  Justice Kennedy hints at this argument when he analogizes laws banning same-sex marriage to “invidious sex-based classifications in marriage [that] remained common through the mid-20th century.  These classifications denied the equal dignity of men and women.”  But he ultimately does not endorse it.  Alternatively, he could have embraced the more recently popular argument that sexual orientation should be considered a suspect classification.  Kennedy flirts with this possibility, as well, but does not embrace it either.

In previous gay rights decisions, ... Kennedy has suggested that discriminatory laws should get a kind of heightened rational basis scrutiny if they were in large part motivated by animus against gays and lesbians.  Many observers, myself included, thought that he might adopt a similar rationale in today’s decision.  No one can doubt that anti-gay animus is a major factor in opposition to same-sex marriage, even if it does not extend to all opponents.  Remarkably, however, the word “animus” does not even occur in the 100 pages of majority and dissenting opinions in today’s case.  Kennedy notes the history of anti-gay prejudice and discrimination, but does not claim that it justifies applying a higher level of scrutiny.  Indeed, he doesn’t really make clear what level of scrutiny applies at all.

Ultimately, Kennedy does not clearly conclude that either the Due Process Clause or the Equal Protection Clause by itself creates a right to same-sex marriage.  Rather, his claim is that the combination of the two somehow generates that result, even if neither can do so alone.  If a sufficiently important right (Due Process Clause) is denied for discriminatory reasons (Equal Protection), then the Fourteenth Amendment has been violated.  However, both the criteria for what makes the right important enough, and the criteria for proving discrimination seem extremely vague.  Thus, it is difficult to tell what – if, indeed, any – implications this ruling will have for future cases.... 

Overall, I can’t avoid the conclusion that much of Kennedy’s reasoning is dubious and flawed.  This is especially unfortunate, given the reality that the Court could easily have relied on any of several stronger rationales for the same result.

That said, I will conclude by pointing out that great Supreme Court decisions aren’t always based on great legal reasoning.  Few Supreme Court rulings are as iconic as Brown v. Board of Education.  Yet Brown notoriously failed to consider much of the relevant historical evidence, did not make clear exactly what kinds of racial discrimination by state governments are unconstitutional, and did not even clearly repudiate Plessy v. Ferguson – among other flaws pointed out by legal commentators.  These flaws were genuine and some of them had harmful consequences down the road.  But they do not invalidate Brown’s standing as a civil rights milestone.

Obergefell v. Hodges is not quite the Brown v. Board of Education for gay rights.  State-sponsored oppression of gays and lesbians today is not nearly as severe as what African-Americans endured in the 1950s.  Because of the enormous progress made in recent decades, Obergefell is closer to the end of the struggle for gay rights than the beginning or even the middle.  But it is a major milestone nonetheless.  I suspect that is what it will be remembered for, more than its flawed reasoning.

Emily Bazelon also asked, "Was this the right way to legalize gay marriage?":

Justice Anthony Kennedy’s majority opinion... shows that he likes to let his pen soar:  “Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations,” he writes, adding that it “demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.”

The question, of course, is whether it is the court’s job to usher them into it.... 

Among gay rights supporters, these doubts will be drowned out in celebration — as Roberts, for one, acknowledges.  Perhaps some activists would quietly agree that state-by-state lawmaking would be better.  But the evidence to date suggests that Alito’s dire warning is overblown; the backlash to same-sex marriage has so far been contained to minor skirmishes.  There are no victims when gay couples marry.  The gain, in love, commitment and stability, is easy to see.  These are among the reasons public opinion has moved swiftly in favor of marriage equality.

As we go forward, the debate between the two sides of the court over how to make social change comes down to trust.  Do we trust the justices and their successors to use the key the majority took out today to unlock other doors, carefully and sparingly?  Not even the justices themselves would claim that the court’s judgment has been infallible, or even close to it.  In his dissent, Roberts brings up the court’s worst constitutional errors: decisions that entrenched slavery and set back workers’ rights.  In my view, he could have added his own court’s Citizens United ruling to the list.

But on a day that is glorious for so many people, let’s hope for a better future.  The justices aren’t entirely removed from the democratic process, after all.  The composition of the courts depends on the president and Senate we choose to elect.  Over time, voters have a say in the kind of justice the court dispenses.  The odds are good that most of them will think the court got this one right.

More pointed legal criticism comes from David Bernstein:

Justice Kennedy’s opinion implicitly continues his campaign to undermine post-New Deal constitutional doctrine on due process and equal protection.

According to black-letter law, at least as understood until recently, with regard to equal protection claims the vast majority of laws are subject to so-called rational basis scrutiny, but strict scrutiny applies if a “suspect class” such as a racial minority faces discrimination, or if a fundamental right is involved and the law is challenged as an arbitrary classification.  With regard to due process, strict scrutiny applies to fundamental rights, and infringements on all other rights receive rational basis scrutiny.

Kennedy does not even address the possibility that homosexuals are a suspect class (which to my mind would have been the strongest rationale for the Court’s decision).  Instead he points out that the Court has consistently held that marriage is a fundamental right, and then basically says that if you combine due process liberty interests with equal protection concerns, the proponents of constitutional protection for gay marriage win.

According to traditional doctrine, even when a fundamental right is involved and strict scrutiny is applied, whether under equal protection or due process, the government can still win if it can show that it has a compelling interest in infringing on the fundamental right, and that the infringement is narrowly tailored to further that compelling interest.

Kennedy, however, never invokes the compelling interest test.  In fact, the phrase “compelling interest” doesn’t appear in his opinion at all.

All this is of a piece with Kennedy’s prior opinions in cases like U.S. v. Windsor, Lawrence v. TexasRomer v. Evans, and Planned Parenthood v. Casey, where Kennedy basically ignored the rational basis/strict scrutiny dichotomy and essentially balanced liberty and equality interests against the government’s claimed interests.  Kennedy is even willing to invoke the due process clause to protect property rights, when his conservative colleagues will only rely on the Takings clause....

The interesting doctrinal question going forward is whether Kennedy’s opinion signals the death knell of due process/equal protection jurisprudence as we have known it for the last 50 years or so, or whether the Court will cabin his opinions so that they are limited to the gay-rights context.  (In other words, do the liberal justices actually agree with Kennedy’s perspective, or do they just go along with it to ensure they get the fifth vote in gay-rights cases?)

Garrett Epps in The Atlantic addresses Kennedy's flowery prose as well as the dissents' arguments that the Court should have moved more gradually:

Certainly those who scorn Kennedy’s poetic style will dislike Friday’s opinion.  Beginning with Confucius and Cicero, he paused briefly at Alexis de Tocqueville to make his case that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”  That is because “marriage responds to the universal fear that a lonely person might call out only to find no one there.”  Denying it to same-sex couples “has the effect of teaching that gays and lesbians are unequal in important respects.”

But even those who find such flights annoying should read the opinion carefully, because it methodically tackles the issues the nation and the courts have debated over more than a decade—the history of marriage, its relationship to reproduction, and the need for “caution” in proclaiming such an important change....

In its final section, Kennedy’s opinion engaged the argument that courts should allow the political process to resolve this issue.  The right to marry is an individual right, not a broad social policy....

The petitioners in this case are people, whose lives are fleeting, he noted.  If there is a right to marry, then barring them from marriage for even one of their days on earth is a deprivation of that right, and being told to be patient is not a fit judicial response.  In addition, he argued, denying the claim to same-sex marriage is itself an intervention in the democratic process, because it would “would teach the Nation that these [same-sex marriage bans] are in accord with our society's most basic compact.”

This political-process argument forms the major disagreement between the majority and the four dissenters....

But each dissenter, in the end, centered his argument on the perceived illegitimacy of deciding this issue in court rather than at the polls....

Over the past four decades, the forward or retrograde movement of gay rights has been shaped at every step by the courts. 

The democratic process argument—whether coolly phrased by Roberts or angrily brandished by Scalia, Thomas, and Alito—has a certain appeal.  The political victories of the past decade—recognition of gays in the military, the abandonment by the executive branch of the Defense of Marriage Act, victories in marriage referenda—were exhilarating.  They have created a sense of inevitability for gay rights in general and marriage equality in particular. Why, then, should courts jump ahead of the parade?

But that argument is wrong.  Over the past four decades, the forward or retrograde movement of gay rights has been shaped at every step by the courts.  Bowers legitimated scorn for LGBT people and helped inspire the referendum on gay marriage that took place in Colorado in 1992, which the Court struck down in Romer.  After that decision, those referenda ceased.  Lawrence took sodomy laws off the table; thus it became possible for gay people and couples to emerge from the shadows.  As they stood in the sunshine, they became, for many straights, neighbors rather than terrifying phantoms.  A court decision in Massachusetts put same-sex marriage on the agenda.  Courts have been as essential to that progress as air is to life.

For the Court to have traveled this far and then paused in the name of “self-government” would have been so perverse as to be all but unimaginable.  Instead, the Court in 2015 kept the promise it had begun to make, almost without knowing it, in 1996 [with its decision in Romer].

William McGurn in the Wall Street Journal said that Roe v. Wade “launched the culture wars,” and that with Obergefell v. Hodges “the full furies have [again] been released.”  He then suggested that “thousands of Americans who never dreamed that the issue would affect them will soon get highly personal lessons in how the legalization of same-sex marriage by judicial fiat threatens their schools, their institutions and even their livelihoods.”  

Many articles referred to Roe v. Wade and speculated about the potential for a backlash, which will be covered in more detail below.

Peggy Noonan in the Wall Street Journal comments on the lack of a unanimous vote:

Brown v. Board of Education, the landmark Supreme Court ruling against school segregation, was decided in a unanimous vote, 9-0.  The court understood that in decisions that mandate significant societal and cultural change, and that will garner significant opposition, the fact of unanimity is in itself a kind of final argument.

In Loving v. Virginia, in 1967, the high court struck down prohibitions on mixed-race marriages.  That too was decided unanimously.

Unanimous decisions tend to quell dissent; they confer an air of inarguable legitimacy, even inevitability.  Whatever your own views, you as a citizen must acknowledge that nine lawyers, presumably skilled interpreters of the Constitution who hold different judicial and political philosophies, were able to agree on the charged issue at hand.  Unanimous decisions rob opponents of arguments.

Landmark decisions based on narrow splits reflect a continuing breach.

Not fully acknowledged in the past days of celebration on one side, and profound reservation on the other, is that the court in Obergefell v. Hodges was split 5-4 on same-sex marriage, and that the dissenting opinions were truly remarkable.  They were fiery and in some cases colorful, but they also showed a court divided on the essentials of the Constitution.  Most strikingly, some of them included ominous warnings.

The Church and Same-Sex Marriage

Aside from the dissents, the only other major criticism of the result (as opposed to the reasoning) seemed to come from religious organizations and conservative politicians.  

The Pew Research Group has published various reports documenting the changes in acceptance on LGBT issues.  it appears that white evangelical Christians lead the opposition to same-sex marriage.

As to the Catholic Church, however, there had been reason to hope it was becoming more amenable to homosexual relationships, in that Pope Francis has shown himself to remarkably open-minded, given his position as the head of one of the most conservative institutions on earth.

In July 2013, he received considerable attention when he said, "If someone is gay and seeks the Lord with good will, who am I to judge?"  

Also, according to a New York Times article, six months into his papacy, the Pope said that the church had grown "obsessed" with abortion, gay marriage and contraception, and that he had specifically chosen not to talk about those issues:

His surprising comments came in a lengthy interview in which he criticized the church for putting dogma before love, and for prioritizing moral doctrines over serving the poor and marginalized.  He articulated his vision of an inclusive church, a “home for all” — which is a striking contrast with his predecessor, Pope Benedict XVI, the doctrinal defender who envisioned a smaller, purer church. 

Francis told the interviewer, a fellow Jesuit: “It is not necessary to talk about these issues all the time.  The dogmatic and moral teachings of the church are not all equivalent.  The church’s pastoral ministry cannot be obsessed with the transmission of a disjointed multitude of doctrines to be imposed insistently. 

“We have to find a new balance,” the pope continued, “otherwise even the moral edifice of the church is likely to fall like a house of cards, losing the freshness and fragrance of the Gospel.” 

The pope’s interview did not change church doctrine or policies, but it instantly changed its tone.  His words evoked gratitude and hope from many liberal Catholics who had felt left out in the cold during the papacies of Benedict and his predecessor, John Paul II, which together lasted 35 years.  Some lapsed Catholics suggested on social media a return to the church, and leaders of gay rights and gay Catholic groups called on bishops to abandon their fight against gay marriage. 

But it left conservative and traditionalist Catholics, and those who have devoted themselves to the struggles against abortion, gay marriage and artificial contraception, on the defensive, though some cast it as nothing new....

The pope’s words are likely to have repercussions in a church whose bishops and priests in many countries, including the United States, have often seemed to make combating abortion, gay marriage and contraception their top public policy priorities.  Francis said that those teachings have to be presented in a larger context. 

“I see the church as a field hospital after battle,” Francis said.  “It is useless to ask a seriously injured person if he has high cholesterol and about the level of his blood sugars.  You have to heal his wounds.  Then we can talk about everything else.” 

From the outset of his papacy in March, Francis, who is 76, has chosen to use the global spotlight to focus on the church’s mandate to serve the poor and oppressed.  He has washed the feet of juvenile prisoners, visited a center for refugees and hugged disabled pilgrims at his audiences.  His pastoral presence and humble gestures have made him wildly popular among American Catholics, according to a recent Pew survey.   

But there has been a low rumble of discontent from some Catholic advocacy groups, and even from some bishops, who have taken note of his silence on abortion and gay marriage.... 

“This church with which we should be thinking is the home of all, not a small chapel that can hold only a small group of selected people,” he said.  “We must not reduce the bosom of the universal church to a nest protecting our mediocrity.”

In January 5, 2014, the Los Angeles Times reported, "Pope Francis has taken another step toward making the Catholic Church more inclusive by telling priests to rethink how they reach out to the children of gay and separated parents."

A story posted by the Religion News Service (RNS) talks about pilgrimages by Catholic gay rights groups increasing:

Chalk it up to the so-called Francis Effect, where the pope’s open-arms acceptance is giving new hope to gay and lesbian Catholics who have felt alienated from their church for decades.

What’s been even more surprising is that both New Ways and a similar Catholic LGBT organization in Britain are finding support from the Catholic hierarchy in their efforts to meet the pontiff when they both visit the Vatican on Ash Wednesday (Feb. 18), the start of Lent, the period of penance and fasting preceding Easter.

For example, Archbishop Georg Ganswein, head of the papal household and the top aide to Pope Emeritus Benedict XVI, responded to New Ways’ request for a papal meet-and-greet by reserving tickets for the group at Francis’ weekly public audience in St. Peter’s Square.  It’s not a private meeting — which is tough for anyone to get — but it’s not nothing.

The pope’s ambassador to Washington forwarded a similar request to Rome.  Even San Francisco Archbishop Salvatore Cordileone — point man for the U.S. Conference of Catholic Bishops’ battle against gay marriage — had written a letter to the Vatican on their behalf.

Last December, Cordileone had a constructive meeting with Frank DeBernardo, executive director of New Ways, and Sister Jeannine Gramick, a co-founder of New Ways and a longtime advocate for LGBT inclusion in the church.  But they were still surprised by the archbishop’s willingness to write a letter for them....

“I feel that the positive reaction that we have been getting from the hierarchy is due to the welcoming spirit of Pope Francis, who wants to welcome everyone,” said Gramick, speaking by phone from Assisi, the pilgrims’ last stop before heading to Rome.

“It’s very heartening to people who have felt alienated and rejected for so long, so we are feeling very hopeful.”

Gramick knows about rejection.  In 1999, she was silenced by the Vatican for her “erroneous and dangerous” work with gay Catholics.  She and the Catholic priest who co-founded New Ways Ministry in 1977 had “caused confusion among the Catholic people and have harmed the community of the church,” said the office headed by Cardinal Joseph Ratzinger, who would later be elected Benedict XVI.

The ministry’s work was called “doctrinally unacceptable.”  A year later, Gramick was barred from even speaking of the 11-year probe of her work, an order she refused.  As late as 2010, the U.S. Conference of Catholic Bishops referred to New Ways as having “no approval or recognition from the Catholic Church.”

Now, the group is hoping the Vatican will include them among the list of official pilgrimage groups read aloud at the audience....

If those sound like small steps, LGBT Catholics say they would, in fact, represent a huge leap forward considering how they were treated under the papacies of Benedict and St. John Paul II....

At the same time, Francis has frequently reiterated the church’s teaching that marriage is only between a man and a woman, and he has ripped what he calls the “ideological colonization of the family” by the West, language that refers in part to efforts to promote gay marriage and other issues in developing countries.  He has also blasted “gender theory,” which for many is a suspect buzzword of secular culture.

Still, the New Ways leaders and many gay Catholics see real reasons for hope, and not just for themselves.

In any event, even the Pope cannot single-handedly change the views of all Catholics or even all bishops.  According to the Guardian:

Pope Francis appeared on Saturday night to have lost out to powerful conservatives in the Roman Catholic church after bishops scrapped language that had been hailed as a historic warming of attitudes towards gay people.

In the final report of an extraordinary synod on the family which has exposed deep divides in the church hierarchy, there is no mention – as there had been in a draft version – of the “gifts and qualities” gay people can offer. Nor is there any recognition of the “precious support” same-sex partners can give each other.

A paragraph entitled “pastoral attention to people of homosexual orientation” – itself a distinctly cooler tone than “welcoming homosexual persons” – refers to church teaching, saying there can be “not even a remote” comparison between gay unions and heterosexual marriage.

“Nevertheless,” it adds, “men and women of homosexual tendencies must be welcomed with respect and sensitivity.”  They should not suffer from discrimination, it adds.  But the shift in tone is clear.  And, in a potentially stark sign of the discomfort provoked among many bishop, even this watered-down passage failed to pass the two-thirds majority needed for it to be approved.

After the decision in Obergefell was announced, the U.S. Conference of Catholic Bishops issued the following statement:

Regardless of what a narrow majority of the Supreme Court may declare at this moment in history, the nature of the human person and marriage remains unchanged and unchangeable.  Just as Roe v. Wade did not settle the question of abortion over forty years ago, Obergefell v. Hodges does not settle the question of marriage today.  Neither decision is rooted in the truth, and as a result, both will eventually fail.  Today the Court is wrong again.  It is profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a marriage.

The unique meaning of marriage as the union of one man and one woman is inscribed in our bodies as male and female.  The protection of this meaning is a critical dimension of the “integral ecology” that Pope Francis has called us to promote.  Mandating marriage redefinition across the country is a tragic error that harms the common good and most vulnerable among us, especially children.  The law has a duty to support every child’s basic right to be raised, where possible, by his or her married mother and father in a stable home. 

Jesus Christ, with great love, taught unambiguously that from the beginning marriage is the lifelong union of one man and one woman.  As Catholic bishops, we follow our Lord and will continue to teach and to act according to this truth.

I encourage Catholics to move forward with faith, hope, and love: faith in the unchanging truth about marriage, rooted in the immutable nature of the human person and confirmed by divine revelation; hope that these truths will once again prevail in our society, not only by their logic, but by their great beauty and manifest service to the common good; and love for all our neighbors, even those who hate us or would punish us for our faith and moral convictions. 

Lastly, I call upon all people of good will to join us in proclaiming the goodness, truth, and beauty of marriage as rightly understood for millennia, and I ask all in positions of power and authority to respect the God-given freedom to seek, live by, and bear witness to the truth.

Obergefell and Conservative Politicians

Karen Tumulty summarized the issue for Conservatives:

The U.S. Supreme Court’s decision Friday legalizing same-sex marriage across the country has confronted the Republican Party with a choice:  to rally the base by continuing to fight, or take the loss and move on.

Gay marriage is an issue for which public support has grown with a speed unlike that seen on any other social question in modern history.

Opposition remains strong, however, among religious and social conservatives.  That segment of voters is crucial to the GOP coalition and a key to victory in some of the early-contest states, including Iowa, South Carolina and much of the rest of the South.

The dilemma presented by the same-sex marriage ruling expressed itself almost immediately in the reactions from the party’s enormous field of declared and presumed 2016 presidential candidates.  They ranged from defiant to pragmatic, apocalyptic to philosophical.

In each, there was a glimpse of how the candidates have mapped out their path to victory.

“I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” former Arkansas governor Mike Huckabee said.  “We must resist and reject judicial tyranny, not retreat.”

Huckabee’s comments reflected his background as a Southern Baptist minister, but also the fact that he is basing his campaign strategy on winning the Iowa caucuses, as he did in 2008, on the strength of his dominance among evangelical voters....

Louisiana Gov. Bobby Jindal, an underdog who this week became the 13th formally declared GOP presidential candidate, predicted that the decision “will pave the way for an all-out assault against the religious freedom rights of Christians who disagree.”

Other GOP candidates, while criticizing the ruling, expressed acceptance and sought to refocus on other issues that were raised by the ruling.

“While I disagree with this decision, we live in a republic and must abide by the law,” said Sen. Marco Rubio (Fla.). “As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.”

Former Florida governor Jeb Bush struck a similar tone:  “I believe the Supreme Court should have allowed the states to make this decision.  I also believe that we should love our neighbor and respect others, including those making lifetime commitments.  In a country as diverse as ours, good people who have opposing views should be able to live side by side.”

Such measured responses could play better in the first GOP primary in New Hampshire, as well as in the general election.

Opinion polls show that a majority of Americans — and a significant percentage of Republicans — now support same-sex marriage.

It represents a sharp political swing from the politics of only a decade ago.  In the 2004 election, gay marriage was on the ballot in 11 states — and in all of them, voters rejected it.  Further, the issue helped drive Republican voter turnout to return George W. Bush to the White House.

There are still strong differences in support for same-sex marriage in various parts of the country.  The Pew Research Center found last year that in 18 states, less than half the public favored same-sex marriage.  Pew also has reported that opposition was at 50 percent or higher among seniors, African Americans, white evangelicals, weekly churchgoers, and Republicans who identify themselves as conservative.

Controversial court decisions have sometimes served as a valuable political organizing tool for the right.

“The decision by this Supreme Court to redefine marriage contrary to global and historical understandings of the word no more settles the national debate on marriage than the court’s Roe v. Wade decision over 40 years ago settled the national debate on abortion,” said Tim Head, executive director of the Faith and Freedom Coalition, an organization that mobilizes evangelicals in politics.

One difference, however, is that overall public opinion on abortion has remained relatively stable since that 1973 decision, with most people believing that the procedure should remain legal in some circumstances. So opponents have focused their efforts on chipping away at abortion availability, with such measures as parental-consent laws and restrictions on facilities that provide the procedure.

There are almost no practical choices for unraveling what the court has done on same-sex marriage....

The court decision comes at a moment when battle cries to protect “religious freedom” have become reliable applause lines at GOP gatherings.  Conservatives see government encroachments not only on traditional marriage, but also in areas such as health care, where the Affordable Care Act requires insurance to cover contraception.

The GOP reaction contrasted sharply with the jubilant response of several Democratic presidential candidates, who praised the decision and cast it as reflective of an evolving, more tolerant United States.

As recently as the 2008 presidential election, both of the leading Democratic contenders — Barack Obama and Hillary Rodham Clinton — were publicly opposed to gay marriage. But they and most other Democrats have since embraced such unions as a constitutional right.

Clinton, whose Twitter page on Friday featured the word “HISTORY” in rainbow colors, took a dig at Republicans who oppose the ruling.

“As love and joy flood our streets today, it is hard to imagine how anyone could deny the full protection of our laws to any of our fellow Americans — but there are those who would,” Clinton said in a statement. “So while we celebrate the progress won today, we must stand firm in our conviction to keep moving forward.”

David Ignatius in the Washington Post writes:

After the Supreme Court’s historic 1954 ruling in Brown v. Board of Education, Southern politicians adopted a strategy that became known as “massive resistance.”  It doomed the South to a losing battle against not just the court but also a majority of Americans. 

Some GOP conservatives may be on the verge of making a similar mistake in the aftermath of the court’s ruling last week supporting same-sex marriage.  At the very time moderate Republicans want to escape positions that isolate them from an increasingly diverse and tolerant country, some hard-right leaders seem ready to double down on a limiting version of “traditional values.”

Poll numbers show why defiance is likely to be a losing strategy.  According to the Pew Research Center, 57 percent of Americans support gay marriage.  In the aftermath of the court’s decision, this number will probably grow, especially among the younger voters the GOP needs to attract.  Among millennials, born after 1980, 73 percent support same-sex marriage.

Whether the GOP follows the road of resistance depends on how the party’s leadership reads the political mood.  Denunciations of the ruling came from some right-wing presidential candidates....

[Justice Scalia's sarcastic comments in his dissent] recall the aggrieved language used by Southerners after the Supreme Court ruled that school segregation was illegal.  Conservatives asserted then the South’s deeply held values and way of life had been attacked.  Southern conservatives were at first unsure how far to press their dissent, but that vacuum was filled by Sen. Harry F. Byrd. 

“If we can organize the Southern States for massive resistance to this order I think that in time the rest of the country will realize that racial integration is not going to be accepted in the South,” Byrd said in his famous February 1956 speech.  In line with the resistance strategy, schools were closed and court orders were ignored.  It took federal troops to eventually impose desegregation.

This is the dark American past toward which some far-right Republicans seem to want to steer their party.  The problem is that court-bashing may be good politics for candidates seeking support from older, whiter, more religious voters in the crowded GOP field.  The country as a whole may accept same-sex marriage, but it’s backed by only 39 percent of people born before 1946, 34 percent of Republicans and 27 percent of white evangelical Protestants. 

History tells us that intolerance is a losing bet in America, and that those who embrace defiance of the courts regret it later.  The Richmond Times-Dispatch apologized to its readers in 2009 for its “editorial enthusiasm for a dreadful doctrine” a half-century before.  “The record fills us with regret.” 

Paul Waldan also of the Washington Post takes a similar view:

When you suffer a policy defeat, you have a few choices for what to do next.  You can move on, giving your attention to other issues.  You can look for ways to make progress on the issue, this particular setback notwithstanding.  Or you can simply refuse to abide by the new state of affairs, whether it’s a law passed by Congress or a ruling by the Supreme Court.  With the two major rulings the court made last week (the other being on "Obamacare"), Republicans faced this choice, and more than a few of them are choosing refusal.  So far it may be just rhetorical, but it could open up yet another rift within the Republican Party as it tries to pick a presidential nominee and then unite under a banner that can win the support of a majority of the electorate.

There is a clear divide among Republicans in how they’ve reacted to the court’s decision in Obergefell v. Hodges, and it roughly correlates to how much concern each individual has about winning that national majority.  Jeb Bush said the focus now should be on protecting religious liberty, presumably that of our nation’s oppressed bakers and florists.  Sen. Marco Rubio (R-Fla.) agreed, saying “we live in a republic and must abide by the law.”  But in other quarters, there were hints of the kind of resistance we saw after the Supreme Court struck down segregated schools six decades ago.

Or at least there were people advocating that kind of resistance, if the resistance itself hasn’t yet emerged on any significant scale.  Texas Attorney General Ken Paxton announced that if county clerks in his state have religious objections, they should refuse to give marriage licenses to same-sex couples.  If someone decides to sue them, “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”  Mike Huckabee predicted there would be a campaign of civil disobedience from Christians and reiterated his bizarre legal theory that Supreme Court rulings have no effect until Congress passes a law authorizing them.  Some, like Wisconsin Gov. Scott Walker, are advocating a constitutional amendment reversing the decision.  Sen. Ted Cruz (R-Tex.) argued that states that were not party to the suit are not bound by it, so they don’t have to obey the ruling until a court specifically orders them to.  Sen. Rand Paul (R-Ky.) wrote an op-ed stating his belief that if gay people are allowed to get married, then government at all levels should simply stop issuing marriage licenses altogether.

You can say all this is just bluster, and you wouldn’t be wrong.  Other than the odd county clerk who can give a couple trying to get their license a very inconvenient day or two, there isn’t much anyone who objects to the court’s ruling can do.  But the louder they are about it, the more they reinforce the idea that the Republican Party is the party that not only hates gay people, but is also stuck in the past and refuses to grant the legitimacy of any institution it doesn’t agree with.  And candidates like Bush and Rubio will no doubt be attacked for being insufficiently militant on this issue.

The idea that the Supreme Court no longer needs to be heeded once it rules in ways they don’t like has a parallel in how Republicans have acted toward Barack Obama throughout his presidency.  From the beginning, large sections of the party’s base, and even many of its elected officials, simply refused to accept that Obama is the president and wields the powers of that office legitimately.  As many as half of all Republicans have believed at various times that with the cooperation of ACORN, Obama stole both the 2008 and 2012 elections (despite the fact that ACORN, never particularly powerful, went out of business in 2010).  And let’s not forget that Obama literally had to show his birth certificate to prove he’s an actual American (and some people weren’t satisfied even then).

That kind of extremism — not just proposing radical ideas, but also being ready to shut down the government or have it default on its debts, and refusing to accept the legitimacy of the institutions of American government — has been one of the hallmarks of the Obama era in the history of the GOP.  Plenty of Republicans find that deeply troubling, but they aren’t the ones who have been defining the party’s identity for the past six years.

It’s possible that once the party chooses its nominee — presuming it’s someone like Bush or Rubio, and not someone like Cruz — and that nominee sets about trying to convince the middle of the American electorate that he’s a reasonable guy, all this noise will be quickly forgotten.  But it will make that nominee’s task significantly harder, as his last couple of predecessors discovered.

Sen. Ted Cruz has been perhaps the most vocal Conservative critic of the decision, even going so far as to suggest a ridiculous amendment to the Constitution:

Sen. Ted Cruz spent his years at Harvard Law School working to secure a Supreme Court clerkship and then made his name as a lawyer by arguing in front of the body nine times.

But now, as a presidential candidate seeking support from the right wing of his party, Cruz (R-Tex.) has made excoriating the high court a central part of his campaign.

The attacks were prompted by the landmark opinions from the high court in late June that legalized same-sex marriage nationwide and upheld key provisions of the Affordable Care Act.

Calling it “some of the darkest 24 hours in our nation’s history,” Cruz has repeatedly characterized the rulings as political decisions that imperil the Constitution and has accused justices of violating their oaths and federal law.  He has called for a constitutional amendment requiring members of the Supreme Court to undergo judicial retention elections and has suggested that only the people directly involved in the gay-marriage case are bound by the justices’ ruling.

“To see the court behaving as it is today, as a super-legislature, simply enacting the policy preferences of the elite judges who are serving upon it, is a profound betrayal of their judicial oaths of office and of the constitutional design that has protected our liberty for over two centuries,” Cruz said in an interview over the weekend.

The rhetoric is striking not only for its sharp tone but because it comes from a man who spent years trying to get inside the Supreme Court.  He accomplished his goal by serving as a law clerk for Chief Justice William H. Rehnquist from 1996 to 1997.  He became a member of the Supreme Court bar in 2002 and argued before the body as solicitor general of Texas and as a private lawyer.  He also has written more than 80 briefs for the court.

One commentator, far from thinking Obergefell an injury to Republicans, believes that the "Supreme Court just did Republicans a huge favor":

That sigh of relief you heard following the Supreme Court's ruling Friday legalizing same-sex marriage nationwide wasn't just from LGBT activists; it also came from savvy Republicans who had been quietly rooting for just that decision for a very long time.

Publicly, of course, most Republicans, and particularly those running for president, disagreed with the ruling to one degree or another. There was the angry denunciation — “Marriage between a man and a woman was established by God, and no earthly court can alter that,” said Bobby Jindal — and the careful line-walking — “I believe in traditional marriage. … I also believe that we should love our neighbor and respect others, including those making lifetime commitments,” said Jeb Bush.

But, the simple political reality is that the fight over gay marriage has long been over. Public opinion has surged in favor of allowing gays and lesbians to marry over the last decade, and young people (even Republican young people) are far more tolerant of allowing gays to marry than are those 65 years and older.

The problem for Republicans, who have long acknowledged that reality, is that their party's base remains quite socially conservative and opposed to gay marriage. As long as there was a fight — in the states or in the judiciary — they were forced to fight in order to preserve their credibility within a critical voting bloc of their party. And by so doing, they were positioning themselves increasingly outside the center of political thought on the issue, complicating any effort to court independent or Democratic-leaning voters in the process.

The court's ruling now gives Republicans a very clear way to both satisfy their base while also not alienating the rest of the country. I don't agree with what the court said, you can hear a Republican running for president saying, but it is now the law of the land and I will respect it.

Don't believe me? Check out this statement from the decidedly conservative Ben Carson: “While I strongly disagree with the Supreme Court’s decision, their ruling is now the law of the land.”

And here’s GOP strategist Matt David, who worked for John McCain’s 2008 presidential campaign.

Sen. Lindsey Graham (R-S.C.), who is also running for president, echoed Carson’s comments and then made the case for letting sleeping dogs lie about as well as anyone could.

“ … Given the quickly changing tide of public opinion on this issue, I do not believe that an attempt to amend the U.S. Constitution could possibly gain the support of three-fourths of the states or a supermajority in the U.S. Congress,” Graham said. “Rather than pursing a divisive effort that would be doomed to fail, I am committing myself to ensuring the protection of religious liberties of all Americans.”

What this ruling does then is take same-sex marriage off the table as a major talking point, debate issue or differentiator between the candidates during the coming Republican primary. Yes, Jindal, Mike Huckabee and Rick Santorum — to name three — will talk about this ruling as part of a broader indictment of the increasingly liberal culture. But for the likes of Bush, Marco Rubio and others, they will no longer have to walk a political minefield when responding. The I disagree but it's the law of the land line is difficult to argue against; it's the line most establishment Republican candidates now use when abortion is brought up as an issue in a Republican primary.

The truth of the matter is this: Given where public opinion is heading (and has already headed) on gay marriage, the less said about it, the better when it comes to Republicans’ chances of winning back the White House in 2016 and beyond. It had become abundantly clear over the last decade that the GOP's position in opposition to gay marriage was increasingly a minority view. And the worst thing in politics is to stay on a boat that is sinking — faster and faster.

The court just threw Republican candidates a life preserver. They would do well to grab it.

Will There Be a Backlash?

It is a much commented on phenomenon that after Roe v. Wade there was a backlash against abortion.  Justice Ginsburg has written and spoken on this issue.  Chief Justice Roberts cited to one of Ginsburg's articles in his dissent.  

Ruth Marcus believes that there won't be a backlash:

Writing a judicial opinion can be like fencing. One of the most effective ways to jab at an opponent is to use his — or her — words to make your own case. 

Thus, Chief Justice John G. Roberts Jr., warning in the same-sex marriage case about the harmful results of the court’s intervention: 

“There will be consequences to shutting down the political process on an issue of such profound public significance,” Roberts wrote in his dissent.  “Closing debate tends to close minds.” 

In support, Roberts archly quoted the observations of “a thoughtful commentator” — Justice Ruth Bader Ginsburg on abortion rights.

“The political process was moving . . ., not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting,” then-Judge Ginsburg said in a 1985 lecture critical of the high court’s approach in Roe v. Wade.  “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” 


Except, same-sex marriage is not like abortion.  The scattered brushfires of official resistance to the court’s ruling last week are already beginning to burn themselves out.  Even as abortion continues to divide the country and the justices (see, for example, Monday’s 5-to-4 vote blocking enforcement of a Texas abortion law), same-sex marriage, I believe, will prove to be far less inflaming. 

Indeed, the Ginsburgian narrative of Roe as a politically polarizing force does not present the full picture.  Unlike the case with same-sex marriage, legislative progress to relax abortion restrictions had begun to slow in the years before Roe

But even assuming Roe fueled a poisonous national argument over abortion, there are reasons to doubt that the court’s edict in Obergefell v. Hodges, decreeing a constitutional right to same-sex marriage and removing the issue from the democratic arena, will produce an analogous backlash.

One reason concerns the fundamental difference between abortion and same-sex marriage, as much as opposition to both is fiercely felt.  For those who believe that life begins at conception and that abortion is therefore tantamount to murder, abortion poses a clear harm and an identifiable victim.

For those who believe homosexual conduct is sinful and marriage is a sacrament limited to one man and one woman, the potential damage posed by an expanded definition of marriage is much harder — indeed, essentially impossible — to articulate. 

The challenge leaves lawyers defending marriage bans stammering about the derivative harm that would somehow befall children in traditional marriages if the link between marriage and procreation were severed. 

“There’s harm if you change the definition because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect?  You expect more children outside of marriage,” John Bursch, defending Michigan’s marriage law, told the justices

Right, there’s going to be less straight marriage and more out-of-wedlock births if gays and lesbians are allowed to marry and have the children they’re already having under the auspices of marriage.  How much simpler to brandish a sonogram of a developing fetus. 

Another reason to doubt any coming backlash can be found in the polls.  The trend line on abortion is essentially flat over the past four decades. In 1977, 19 percent of those surveyed by Gallup believed abortion should be illegal under all circumstances — the same number as in 2015. 

Meanwhile, the generational differences are muted.  According to the Pew Research Center, 57 percent of adults under age 30 say abortion should be legal in all or most cases, the same as among those in their 30s and 40s, and just a shade higher than the 55 percent of those in their 50s and early 60s. 

On marriage, the public transformation has been rapid and the generational divide cavernous.  In 1996, 68 percent told Gallup they were opposed to recognizing marriages between same-sex couples. By May of this year, that share had fallen to 37 percent. 

In generational terms, Pew found 73 percent support for same-sex marriage among millennials, born after 1980, and 59 percent support among Gen Xers (1965-1980); by contrast, just 39 percent of the oldest cohort backed gay marriage, although that was nearly double the share in 2001. In short, opposition to same-sex marriage is, literally, dying out; opposition to abortion is persisting.

David Brooks, a "moderate" conservative, encourages fellow conservatives not to engage in "backlash" tactics:

Christianity is in decline in the United States.  The share of Americans who describe themselves as Christians and attend church is dropping.  Evangelical voters make up a smaller share of the electorate.  Members of the millennial generation are detaching themselves from religious institutions in droves.

Christianity’s gravest setbacks are in the realm of values.  American culture is shifting away from orthodox Christian positions on homosexuality, premarital sex, contraception, out-of-wedlock childbearing, divorce and a range of other social issues.  More and more Christians feel estranged from mainstream culture.  They fear they will soon be treated as social pariahs, the moral equivalent of segregationists because of their adherence to scriptural teaching on gay marriage.  They fear their colleges will be decertified, their religious institutions will lose their tax-exempt status, their religious liberty will come under greater assault.

The Supreme Court’s gay marriage decision landed like some sort of culminating body blow onto this beleaguered climate.  Rod Dreher, author of the truly outstanding book “How Dante Can Save Your Life,” wrote an essay in Time in which he argued that it was time for Christians to strategically retreat into their own communities, where they could keep “the light of faith burning through the surrounding cultural darkness.”

He continued: “We have to accept that we really are living in a culturally post-Christian nation.  The fundamental norms Christians have long been able to depend on no longer exist.”

Most Christian commentary has opted for another strategy:  fight on.  Several contributors to a symposium in the journal First Things about the court’s Obergefell decision last week called the ruling the Roe v. Wade of marriage.  It must be resisted and resisted again.  Robert P. George, probably the most brilliant social conservative theorist in the country, argued that just as Lincoln persistently rejected the Dred Scott decision, so “we must reject and resist an egregious act of judicial usurpation.”

These conservatives are enmeshed in a decades-long culture war that has been fought over issues arising from the sexual revolution.  Most of the conservative commentators I’ve read over the past few days are resolved to keep fighting that war.

I am to the left of the people I have been describing on almost all of these social issues.  But I hope they regard me as a friend and admirer.  And from that vantage point, I would just ask them to consider a change in course.

Consider putting aside, in the current climate, the culture war oriented around the sexual revolution.

Put aside a culture war that has alienated large parts of three generations from any consideration of religion or belief.  Put aside an effort that has been a communications disaster, reducing a rich, complex and beautiful faith into a public obsession with sex.  Put aside a culture war that, at least over the near term, you are destined to lose.

Consider a different culture war, one just as central to your faith and far more powerful in its persuasive witness.

We live in a society plagued by formlessness and radical flux, in which bonds, social structures and commitments are strained and frayed.  Millions of kids live in stressed and fluid living arrangements.  Many communities have suffered a loss of social capital.  Many young people grow up in a sexual and social environment rendered barbaric because there are no common norms.  Many adults hunger for meaning and goodness, but lack a spiritual vocabulary to think things through....

The defining face of social conservatism could be this: Those are the people who go into underprivileged areas and form organizations to help nurture stable families.  Those are the people who build community institutions in places where they are sparse.  Those are the people who can help us think about how economic joblessness and spiritual poverty reinforce each other.  Those are the people who converse with us about the transcendent in everyday life....

I don’t expect social conservatives to change their positions on sex, and of course fights about the definition of marriage are meant as efforts to reweave society.  But the sexual revolution will not be undone anytime soon.  The more practical struggle is to repair a society rendered atomized, unforgiving and inhospitable.  Social conservatives are well equipped to repair this fabric, and to serve as messengers of love, dignity, commitment, communion and grace.

Just How Far Have LGBT Rights Come?

Just about every article on the decision spoke at least briefly on how far attitudes concerning LGBT issues have come.

The New York Times editorial board summarized:

In the years since, Americans’ attitudes toward gays and lesbians and the right to marry have changed dramatically. Same-sex marriage is now legal in 36 states, along with the District of Columbia — representing more than 70 percent of all Americans. A solid and growing majority now believes in marriage equality; among those 18 to 29, support is at nearly 80 percent.

Around the world the change has come even faster.  Since 2000, 20 countries — from Argentina to Belgium and South Africa — have legalized same-sex marriage.  In May, an Irish referendum on legalization won the support of nearly two-thirds of voters.

Below is a list of countries that presently recognize or allow same-sex marriages:

  • The Netherlands, 2001
  • Belgium, 2003
  • Canada, 2005
  • Spain, 2005
  • South Africa, 2006
  • Norway, 2009
  • Sweden, 2009
  • Portugal, 2010
  • Argentina, 2010
  • Iceland, 2010
  • Denmark, 2012
  • Brazil, 2013
  • England, 2013
  • France, 2013
  • New Zealand, 2013
  • Uruguay, 2013
  • Luxembourg, 2014
  • Scotland, 2014
  • Finland, 2015
  • Slovenia, 2015
  • The Republic of Ireland, 2015
  • Mexico, 2015
  • United States, 2015

Michael Gerson of the Washington Post had this to say about the shift in perceptions:

Why has the gay rights movement been so dramatically successful?  Certainly, the people who came out to family and friends — often at considerable risk and cost — humanized an abstract debate.  Fictional gay characters — see “Glee” and “Modern Family” — did much the same. 

But perhaps the most significant shift in strategy came from public intellectuals such as Jonathan Rauch and Andrew Sullivan, who urged gays to embrace the conventional, bourgeois practice of marriage.  What had seemed to many Americans a sexual liberationist movement requested access to the institution designed to limit sexual freedom for the sake of social order and effective child-rearing (while delivering joys that arise only out of commitment).  Many gay rights advocates essentially made conservative arguments — concerning the individual and social benefits of faithfulness — to secure their legal goal.  It is a form of gay rights that Middle America — already inclined to live and let live — could readily embrace.... 

Gay people are joining a social institution that heterosexuals have often made a hash of and just as it is fading among some social groups.  We have no idea if gays will do better, worse or the same.  But they now have a chance to leave their imprint. 

What happens to people and institutions that continue to embrace the traditional view of marriage — the one that President Barack Obama held when he was elected?  This conviction has been declared an illegitimate basis for public policy.  But will the state regard interactions with institutions that embody traditional views to be contaminating?  How will grants to Catholic anti-poverty programs or to students attending evangelical colleges be affected? 

The tens of millions of people holding a traditional view of marriage are not generally motivated by animus (though some, of course, are).  Many embrace a certain reading of their sacred religious text or accept the moral teachings of a religious institution.  You may disagree with that reading and teaching, but the people and institutions that hold them are not going away. 

Some of the main architects of the gay marriage movement, including Rauch and Sullivan, are genuine pluralists.  They do not intend the advance of gay rights to become a campaign to defund and delegitimize traditional institutions.  Such a legal effort would guarantee de­cades of cultural warfare.  Obergefell would then fall into the category of Roe v. Wade, a source of national division, rather than Brown v. Board of Education, a source of inspiration.

Those who believe that religion in the United States is about old white men telling them who to sleep with really don’t know much about religion in America.  They might visit, for example, Catholic Charities Archdiocese of New Orleans, which, in the wake of Hurricane Katrina, helped a community crawl back into functionality.  This was done with both government and private funds.  Religious service providers across the country are meeting needs that most people don’t even notice.  Will a legal assault on these institutions be defined as a prerequisite for equality? 

The alternative is a principled pluralism in which gay people can enjoy the institution of marriage and religious institutions can organize, educate and serve according to their beliefs.  In a post-Obergefell world, this is an outcome many of us could welcome.

What Does the Decision Say about the Future of the SCOTUS

Adam Liptak comments on the increasing disagreement of the conservative members of the Supreme Court:

The stunning series of liberal decisions delivered by the Supreme Court this term was the product of discipline on the left side of the court and disarray on the right.

In case after case, including blockbusters on same-sex marriage and President Obama’s health care law, the court’s four-member liberal wing, all appointed by Democratic presidents, managed to pick off one or more votes from the court’s five conservative justices, all appointed by Republicans.

They did this in large part through rigorous bloc voting, making the term that concluded Monday the most liberal one since the Warren court in the late 1960s, according to two political-science measurements of court voting data.

“The most interesting thing about this term is the acceleration of a long-term trend of disagreement among the Republican-appointed judges, while the Democratic-appointed judges continue to march in lock step,” said Eric Posner, a law professor at the University of Chicago.

Many analysts credit the leadership of Justice Ruth Bader Ginsburg, the senior member of the liberal justices, for leveraging their four votes.  “We have made a concerted effort to speak with one voice in important cases,” she said in an interview last year.

The court’s conservatives, by contrast, were often splintered, issuing separate opinions even when they agreed on the outcome. The conservative justices, for instance, produced more than 40 dissenting opinions, the liberals just 13.

The divisions on the right, Professor Posner said, may have occurred in part because the mix of cases reaching the court has invited a backlash.  “Conservative litigators who hope to move the law to the right by bringing cases to the Supreme Court have overreached,” he said.  “They are trying to move the law farther right than Kennedy or Roberts think reasonable”....

The 2014 term was the most liberal one since the late 1960s, with median Justice Anthony M. Kennedy voting more often with the court’s liberal bloc. 

In addition, Professor Posner said, the conservative justices are airing real jurisprudential disagreements.  “Kennedy, Roberts and Alito’s pragmatism contrasts with the formalism of Scalia and Thomas, for example,” he said.

Lee Epstein, a law professor and political scientist at Washington University in St. Louis, said: “The Republicans can’t seem to agree even when they agree.”  She added that “the chief justice has a much tougher task” than Justice Ginsburg does.

David A. Strauss, a law professor at the University of Chicago, said the cases the court agreed to hear this past term might have created a misperception about how liberal it has become.  “It’s still a conservative court — just not as conservative as some had hoped and some had feared,” he said.  “King [the case dealing with "Obamacare"] might never even have been brought if the court, or at least some justices, had not given signals that they were receptive to claims like that.”

The term was not uniformly liberal, of course.  On Monday alone, the court ruled against death row inmates in a case on lethal injections and against the Obama administration in a case on environmental regulations.

Nor is the court remotely as liberal as the Warren court, which issued a far greater percentage of liberal decisions, often unanimously, in cases on school desegregation, interracial marriage, voting rights and criminal procedure.

The Obama administration, though, found an unlikely ally in the court in major cases, said Pratik A. Shah, a lawyer with Akin Gump Strauss Hauer & Feld.  “Not many imagined a few years ago,” Mr. Shah said, “that this court, rather than Congress, would become the more effective venue for furthering the administration’s priorities.”

When the administration ended up on the losing side, it was often because it took a conservative position, particularly in criminal cases, said Adam Winkler, a law professor at the University of California, Los Angeles.

The administration most often lost the court because it couldn’t hold the liberals,” Professor Winkler said.  “The administration’s positions in the Supreme Court were too conservative.  Shockingly, the Supreme Court may have been more liberal than the Obama administration this term.”  This was so, he said, in cases involving drugs, guns, searches and threats posted on Facebook.

When the four liberal members of the court — Justices Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — achieved a majority, they were often happy to let others do the talking....

In major cases, the court seemed to capture the spirit of the time, notably in establishing a constitutional right to same-sex marriage as a majority of Americans came to embrace it.... 

This term may have been an anomaly, and the next one may shift back to the right.  The justices have already agreed to hear cases on affirmative action and the meaning of “one person, one vote,” and they are likely to hear a major abortion case.  Last term, the court issued unanimous decisions in about two-thirds of its case, a modern record.  This term, the number dropped to about 40 percent, a little lower than the average in recent terms.

But the court remained united in cases involving religion, issuing unanimous rulings in favor of a Muslim inmate in an Arkansas prison who wanted to grow a beard and an Arizona church that challenged a town ordinance limiting the size of signs announcing services.

Business groups had a mixed record, winning 12 of the 22 cases in which they faced individuals or the government.  “This term’s business decisions should put an end to the persistent theory that the Roberts court is reflexively biased in favor of corporate interests,” said Lauren R. Goldman, a lawyer with Mayer Brown.

Moreover, she said, many of the business victories were narrow.  “On the other side of the ledger,” she said, “the court handed the business community several substantial losses.”  Among the setbacks, she said, were victories for plaintiffs in employment discrimination cases and a broad interpretation of the scope of the Fair Housing Act.

Over all, though, the story of the last nine months at the Supreme Court was of leftward movement.

Ian Millhiser writes about what Chief Justice Robert's decision's hidden meaning for conservatives:

Roberts rejected the Constitution’s promise of marriage equality — a view which The Onion quipped will someday lead to him being a villain “in an Oscar-winning film about the fight for marriage equality.”  Yet, in the process of reaching his conclusion, Roberts also rejected a particularly aggressive brand of judicial conservatism that is rapidly becoming ascendant in conservative legal circles.

Obergefell v. Hodges, in other words, is a double defeat for conservatives.  At the same moment that a majority of the Court declared the United States to be a marriage equality nation, Chief Justice Roberts announced to his fellow conservatives that their most ambitious legal cases are doomed to failure.

Roberts’s Obergefell dissent, moreover, needs to be read alongside the decision he handed down just one day earlier — his remarkable majority opinion in King v. Burwell, which appeared to scold his fellow conservative lawyers for using the courts as a tool to fight political battles.  “In a democracy,” Roberts wrote in that opinion, “the power to make the law rests with those chosen by the people.”  He then added language that will render the Affordable Care Act unusually resistant to legal challenge.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote in King, before delivering instructions to every judge in the country that they should view future efforts to undermine to Obamacare with skepticism — “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Read together, Roberts’s King and Obergefell opinions may mark a turning point in American law.  They suggest that the chief justice has grown tired of efforts to politicize the judiciary, and that he is particularly annoyed with his fellow conservatives for trying to achieve through litigation what they could not win in elections.  If this interpretation of Roberts’s actions proves true, then the chief justice’s dissent from a decision bringing the blessings of equality to all 50 states may, ironically, be one of the most positive developments for liberals in the last several Supreme Court terms.

Roberts’s Obergefell dissent is, at its heart, an attack on the method Justice Anthony Kennedy used to reach the majority’s conclusion that the Constitution forbids states from denying equal marriage rights to same-sex couples.  Kennedy held that marriage is a fundamental right, and that this right extends to same-sex couples.  Roberts offers a harsh response:

Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.  If I were a legislator, I would certainly consider that view as a matter of social policy.  But as a judge, I find the majority’s position indefensible as a matter of constitutional law.

This is not a frivolous critique, as the Court’s fundamental rights jurisprudence has long been one of the most rudderless and unbounded areas of the law.  As Roberts explains, the Obergefell plaintiffs’ “‘fundamental right’ claim falls into the most sensitive category of constitutional adjudication.”  This claim does not rest upon a right that is specifically mentioned in the Constitution.  Rather, the plaintiffs argued that marriage discrimination violates “a right implied by the Fourteenth Amendment’s requirement that ‘liberty’ may not be deprived without ‘due process of law.’”

This method, of implying rights from the Fourteenth Amendment’s vague promise that liberty shall not be denied without due process — otherwise known as “substantive due process” — has a dark history.  As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, conservatives used this doctrine to hobble laws intended to benefit workers in the early twentieth century.  The Supreme Court used it to strike down laws establishing a minimum wage, ensuring that laborers would not be overworked, and protecting workers’ right to organize....

As I explain in Injustices, bakers in Lochner era New York worked brutal hours in squalid conditions.  Often, sewage pipes leaked raw contents on bakery workers, while roaches lined bakery walls.  The bakeries themselves were hot dungeons heated by lit ovens, and many lacked any flooring to speak of.  Those that did often had rotten floors riddled with rat holes.  The average bakery employee worked between 13 and 14 hours a day in these conditions.  Indeed, the bakery hours were so long that, in 1881, striking bakery workers demanded that their work day bereduced to just 12 hours a day.

Lochner struck down a New York law that limited bakery workers’ hours to ten a day and reduced the overall work week to sixty hours.  It did so based on a fabricated “right to contract” that the Court held to be implicit in the Fourteenth Amendment’s requirement that liberty cannot be restricted without due process of law.

Roberts refers to Lochner sixteen times in his Obergefell dissent, and his descriptions of this case are absolutely scathing.  Lochner‘s “error,” according to Roberts, was that it converted “personal preferences into constitutional mandates.”  Its approach is “discredited” and “unprincipled.”  And Lochner confused past justices’ “naked policy preferences” with the actual Constitution.

None of Roberts’s statements disavowing Lochner are particularly controversial.  Indeed, they were considered orthodoxy by most liberal and conservative lawyers alike until shortly after President Obama first took the oath of office.

Yet, while supporters of Lochner remain a small minority within the legal profession, some members of this minority have risen to positions of great prominence in recent years.  A few years ago, for example, Judge Janice Rogers Brown, a judge on a federal appeals court that is widely viewed as the second most powerful court in the nation, called upon the Supreme Court to re-embrace Lochner and reject rule by the people’s representatives.  “America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers,” Judge Brown wrote, adding that this supposed disarmament is “particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution—a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified.”

Democracy, to Lochnerian judges such as Brown, is the enemy.  And it must be checked through aggressive judicial action....

At the Federalist Society, often the incubator for lawsuits like King v. Burwell and the locus of conservative legal thought, Georgetown law professor Randy Barnett has obtained a kind of rock star status.  Barnett was a member of the legal team that challenged the Affordable Care Act the first time Chief Justice Roberts saved it from destruction, and he is one of the nation’s most prominent proponents of the notion that the Constitution enacts Ms. Ayn Rand’s Atlas Shrugged.

Two years ago, Barnett spoke to a mostly-adoring crowd at the Federalist Society’s national convention, where he laid out a vision of the Constitution that is quite similar to Lochner.  Indeed, Barnett has written that he “would prefer that courts adopt a ‘presumption of liberty’ of the sort the Court seemed to employ in Lochner,” but restoring one of the Supreme Court’s most widely criticized anti-precedents is only one of a long list of ways that he would declare war on the twentieth century if he were empowered to do so.  Barnett has suggested, for example, that Social Security violates “the original meaning of the Constitution” (although, in an apparent act of moderation, he has also proposed allowing “Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments” before this program is phased out).

The significance of Roberts’s Obergefell dissent was not lost on Professor Barnett.  In an angry blog post directed at Republican presidential candidates, Barnett cited King and the fact that Roberts “cited Lochner v. New York 16 times” before urging his fellow conservatives to “learn from the recent past what not to look for in a justice.”

Nor is Barnett alone in expressing this view. Barnett’s blog post echoed a column by the influential political columnist George Will, who blamed conservatives’ “decades of populist praise of judicial deference” for the outcome in King. Jonathan Adler, a law professor who was one of the leading evangelists for the anti-Obamacare arguments presented in King, suggested that the next Republican president could appoint Senator Mike Lee (R-UT), a man who thinks that Social Security, Medicare and federal child labor laws are unconstitutional, to the Supreme Court.

Roberts, who is sufficiently well-connected in conservative legal circles that he received a Supreme Court appointment from the most recent Republican president, is undoubtedly aware that this vision is gaining force among Federalist Society loyalists. Yet his King opinion actually placed the Affordable Care Act on stronger legal footing than it would have rested on if conservatives have never brought this lawsuit seeking to destroy it. And his Obergefell dissent is almost gratuitous in its dismissive approach to Lochner. It is difficult not to read both opinions as a rejection of the views expressed by men like Barnett and Will.

The Chief Justice of the United States, in other words, sent a clear message to the increasingly vocal forces that wish to use the Supreme Court to enact a sweeping economic agenda — not on my watch. His Obergefell dissent explicitly disavows the new Lochnerian evangelism that captured much of the Federalist Society. And his King opinion shows them that further efforts to politicize the judiciary may lead to punishment — in the same way that King punished conservatives by rendering Obamacare immune to many future legal challenges.

That does not mean that the Obergefell dissent was entirely correct on the law. Though its warnings about the dangers of substantive due process are well-grounded in the Supreme Court’s history, its analysis of the strongest argument for marriage equality — the argument that denying equal rights to LGBT Americans violates the Constitution’s promise that no one shall be denied “the equal protection of the laws” — barely even qualifies as cursory. Roberts’s discussion of equal protection spans less than two pages of his opinion, and it does not grapple at all with the Court’s precedents establishing that groups that have historically faced discrimination that bears “no relation to ability to perform or contribute to society” are entitled to heightened protection under the Constitution.

Similarly, Roberts is broadly skeptical of efforts to use the law to foster racial or other forms of equality, and it is likely that he will continue to advance longstanding conservative orthodoxy on subjects such as campaign finance and the workplace.

But Roberts also began his career in the Reagan administration, at a time when conservatives were far more confident of their ability to win political battles through the ordinary political process. Though Reagan did seek to move the law in a more conservative direction, he also pledged to appoint judges who support “judicial restraint” and his administration explicitly repudiated the approach to judging that drove Lochner. Compared to the aggressive judicial activism favored by people like Brown, Barnett and Will, Reagan’s approach to the judiciary was the picture of judicial modesty.

This vision of the judiciary — a vision that called for conservative changes around the margins while also placing the democratic branches very much in the driver’s seat of American government — also dominated groups like the Federalist Society until shortly after Barack Obama became president. Indeed, during the Bush years, the Federalist Society’s brand was so closely associated with judicial restraint that then-Secretary of Homeland Security Michael Chertoff told the conservative legal group in 2006 that “in large part because of the work that the Society and others have done, the claim for judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.”

The Federalist Society, and the conservative legal movement that it helps convene, has changed a lot in the last seven years, but Chief Justice Roberts has not changed nearly as much. Roberts will eagerly give the Federalists everything they asked for up until 2009, but his King and Obergefell opinions suggest that he may give them no more.

According to Robert Barnes:

The Supreme Court was no less polarized this term, nor were its opinions any less divided.  But its landmark decisions saving the Affordable Care Act and declaring that the Constitution provides a right for same-sex couples to marry create nationwide norms for an increasingly divided country.

That’s not to say the rulings were popular, although polls show that the cases came out pretty much the way they might have if put to a national vote.  But the court’s decisions in the two cases that will define the term imposed a blanket solution for states that are split by politics and ideology.

Same-sex couples can marry no matter where they live.  Federal benefits making health insurance affordable accrue whether a person lives in a state that is hos­pitable or hostile to President Obama’s health-care law.

“This was a term when the major results were unifying for the country,” said Walter Dellinger, a longtime Supreme Court advocate and student of the court.  “Had these decisions gone the other way, they would have created great divides between red states and blue states beyond the consequences of the issues involved.”

It may not last.  In the next term, the court could be pressed to decide whether states that restricted abortion rights or voting procedures or gun ownership have gone beyond what the Constitution protects.  Already, the justices have chosen to again examine the use of race in college admissions.  In each of these instances, the court may allow states to adopt widely diverging rules.

And each Supreme Court term is different, more because of the individual issues raised than the evolution of the individual justices.

Last year’s term ended with liberals angry about the conservative justices’ decision that religious liberty protects business owners from complying with a mandate to provide employees with contraceptive care.

This year was one of the Obama administration’s most successful, with the court’s liberal justices compiling record majorities.

The court’s four liberals — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — voted together close to 90 percent of the time and often were able to attract the occasional stray conservative vote that gave them a majority of five.

SCOTUSblog publisher and lawyer Thomas Goldstein counted 26 cases this term with close votes where ideology played a seemingly important role.  The liberal justices prevailed in 19 of them.

On his list of the 10 most significant cases, the liberals were in the majority in eight.  And in none of the cases did a liberal justice cross over to vote with conservatives.

But — with the landmark exception of Obergefell v. Hodges, the case on same-sex marriage — their accomplishments did not move public policy to the left.

The votes by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy in the Affordable Care Act case simply preserved the status quo.  Kennedy provided the vote that protected a legal tool the government and civil rights groups use to prove housing discrimination, but no court had ever doubted it.

“It really has to do with the questions they are being asked, not just the answers they’re giving,” Cary Franklin, a law professor at the University of Texas, said of the justices.

Although liberal legal activists are rarely eager to engage a court they think is too conservative, legal activists on the right have been pushing issues important to them.

The housing-discrimination case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, is a good example.  Private businesses and some states have been looking for a case to ask the court whether plaintiffs suing under the Fair Housing Act must prove intentional discrimination or merely whether a challenged policy has a “disparate impact” on minorities.

Conservatives for years have set their sights on disparate impact — Franklin said it was on former Republican attorney general Edwin Meese’s “wish list” of policies to kill — but courts consistently upheld it.

It is unusual for the Supreme Court to take an issue when there is no split among lower courts, and it took three tries for the court to find a case that properly presented the issue.

Whether to uphold disparate impact “is not going to be a hard question for the liberals,” Franklin said.  But conservatives turned out to be more divided about overturning it, and eventually Kennedy sided with the liberals.

Recognition of disparate impact, Kennedy wrote, “plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.”

It was not the answer conservatives were looking for.

Ginsburg has said that she thinks the four liberal justices are more effective when they speak as one voice.  The conservatives, on the other hand, were much more likely to write separate concurrences and dissents, sometimes sniping at one another.

Also telling is that in the most important cases in which the liberals prevailed, it was a conservative justice who wrote the majority opinion....

As it turned out, according to the SCOTUSblog statistics, Kennedy sided with the liberals in nearly half of the court’s 5-to-4 decisions. It is the first time in 10 terms that he sided more often with liberals in those close cases than with conservatives.

The public seems to have noticed.  Although most experts who watch the court think it has become more conservative, a new CNN poll shows that 37 percent of respondents say it is too liberal, compared with 20 percent who say it is too conservative.

The number who say it is “about right” dropped from 46 percent three years ago to 40 percent now.  Yet at the same time, majorities also said they approved of the court’s decisions on same-sex marriage and the Affordable Care Act, the cases that have received the most public attention.

“Let’s see where we are after next term when the court returns to abortion and affirmative action and confronts union dues and the president’s discretion over immigration enforcement,” Dellinger said.

It is still unclear how Americans will accept the national prescriptions the court has ordered.  Conservative activists compare Obergefell to the court’s decision in Roe v. Wade that established a right to abortion.

“Now everything the pro-life movement did needs to be done again on this new frontier of marriage,” Ryan T. Anderson of the Heritage Foundation wrote in a Boston Globe column.

Justin Driver, a University of Chicago law professor who has studied polarization on the court, said it was years after Roe was decided that it became a cause.

But he added, “I would just be astonished if this continues to be a divisive issue in five years’ time.”

Are There Any Negative Consequences?

There is a silver lining to every cloud; but it is also true there is a cloud behind every silver lining.  Several commentators noted potential negative consequences to what appeared to be an undiluted victory.

This was seen above in the discussions relating to the potential of a backlash against the decision.

According to Timothy Stewart-Winter:

The Supreme Court’s decision affirming the right to same-sex marriage across the United States is a joyous moment for lesbian, gay, bisexual and transgender Americans. Recognition of our equal dignity, and of our right to the same legal protections straight couples enjoy, is a civil rights milestone. But it could also be the swan song for the movement for gay freedom that began after World War II.

It is unfortunate that the movement’s two great victories of the last decade — the right to serve openly in the military and the right to be married — have come as progress has stalled or reversed in so many other areas of civil rights: equal pay and reproductive choice for women; housing and school segregation; police violence against minorities; and the prospects of a decent wage and a modicum of job and retirement security for all.

It is no accident that the one civil rights law that would likely apply to the greatest numbers of gays — a ban on discrimination in employment and housing on the basis of sexual orientation or gender identity — continues to elude us. An anti-discrimination law creates substantial costs not only for the government, which must enforce it, but also for corporations, which must comply with it; letting gays into military service and into the institution of marriage does not. Indeed, 379 employers, including many of the nation’s largest airlines, banks, health insurers and manufacturers, filed a brief in support of same-sex marriage, arguing that inconsistency in marriage laws created an onerous regulatory and financial burden and hurt their efforts to recruit talent.

After Massachusetts became the first state to legalize same-sex marriage, in 2003, a backlash of ballot initiatives and referendums banning such unions swept much of the country. In response, many lesbians and gay men who were uninterested in marrying put aside their doubts for the cause.

But such unity of purpose comes at a price. Freedom to Marry, the advocacy group that has led the marriage equality movement, was in 2013 the largest recipient of money from foundations that focus on gay causes. Will even a fraction of the energy and money that have been poured into the marriage fight be available to transgender people, homeless teenagers, victims of job discrimination, lesbian and gay refugees and asylum seekers, isolated gay elderly or other vulnerable members of our community? Around the same time New York State legalized same-sex marriage, in 2011, it was slashing funds for services to homeless youth, who are disproportionately gay or transgender.

The movement for gay rights that began after World War II was waged from society’s margins; its most outspoken proponents sought to overturn social convention, not join it. It was not at all inevitable that the movement would one day coalesce around marriage.

In 1953, the first year of its publication, the national gay magazine ONE dismissed the idea that gays might one day be allowed to marry. “Rebels such as we, demand freedom!” one article declared. “But actually we have a greater freedom now (sub rosa as it may be) than do heterosexuals and any change will be to lose some of it in return for respectability.”

Of course, this freedom was precarious; the following year the Los Angeles postmaster refused to deliver an issue of the magazine on the grounds that it contained obscenity. Though the Supreme Court ruled in the magazine’s favor, many gay publications, businesses and bars were forced to close in the 1950s and 1960s.

After the 1969 Stonewall uprising in Manhattan — a response to a police raid on a gay bar — the movement quickly built on the demands of feminists and black radicals. In 1972, one activist wrote in a lesbian newspaper that she and her comrades “stand as the greatest threat to this society, far more than gun-carrying revolutionaries or bomb-scare groups blowing up the White House or the Chase Manhattan Bank.”

Coming out back then was itself a radical act. Those whose sexual identities were revealed paid dearly for it. In 1975, a Vietnam veteran, Oliver W. Sipple, thwarted an attempted assassination of President Gerald R. Ford, yet his life was destroyed when the press found out that he was gay. When the tennis champion Billie Jean King was outed as a lesbian in 1981, she lost many of her commercial sponsors.

The AIDS crisis of the 1980s devastated the gay community, but also mobilized it.

Activists found solidarity with other victims of the epidemic — including intravenous drug users, sex workers and homeless people — to demand federal funding for drug research and approval, and to protest the Reagan administration’s cuts to the social safety net. In 1991, the activist organization Act Up demonstrated at a meeting of the American Medical Association to demand universal health care. The crisis revealed, in matters like child custody, hospital visitation and end-of-life care, the impact of excluding gays from marriage.

But even as AIDS renewed longstanding fear of gays, it also propelled them into the political mainstream. AIDS service organizations became part of a growing nonprofit sector. In the two decades since pharmaceutical advances made AIDS less lethal in the United States, the gay rights movement has increasingly made alliances with government and even corporations to press its demands.

Until very recently, most gay victories were won at the local or state level; the federal government lagged. Prodded by activists, President Obama changed this dynamic. He joined Democratic lawmakers to repeal the ban on gays’ openly serving in the military, a legacy of President Bill Clinton’s administration. Mr. Obama’s Justice Department refused to defend a key provision of the Defense of Marriage Act (another Clinton-era legacy), before the Supreme Court struck that provision down two years ago.

This Gay Pride Month won’t soon be forgotten. Many of us are thinking of friends and lovers who did not live to see this day. Cake will be eaten, flowers strewn. Brooms will be jumped over, and glasses smashed. Some of us would not have chosen to put the marriage fight ahead of others, but none can deny that there has been a widespread hunger for this right.

There will be pockets of backlash: resistance by a few local clerks, and so-called religious liberty laws to exempt businesses from having to comply.

But the graver danger comes not from the religious right, but from the risk that our newfound clout will blind some of us to the struggles of others. More gays are insiders than ever before; a gay man leads Apple, one of America’s most valuable corporations. A lesbian, Tammy Baldwin, Democrat of Wisconsin, was elected to the Senate in 2012. Prominent Republicans, libertarians, financiers and chief executives have given their names, time and money to the cause of same-sex marriage.

But many more gay and transgender Americans are permanent outsiders. Some churches are doubling down on anti-gay rhetoric, which fuels family rejection and contributes to youth homelessness. Violence against transgender Americans is on the rise. Gay people in prison remain subject to rape and abuse. Rates of new H.I.V. infections are rising among young black men.

Just as feminists learned after the 19th Amendment was ratified in 1920, a social movement that throws most of its weight in pursuit of a single policy may falter and stagnate when it achieves a resounding victory.

Gays must now devote to the fight for protection from discrimination the same resourcefulness and energy with which we fought for the right to marry. We should keep in mind that our struggle began as a fight against police harassment, and “Black Lives Matter” is our cause, too. Befitting its status as the 20th, not the first, country to legalize same-sex marriage, America should preach equality abroad humbly, acknowledging that it does so with the zeal of a convert.

The gay movement has stood for valuing all families — including those led by single parents, those with adopted children, and other configurations. It has stood for other ideas, too, that risk being lost in this moment’s pro-family turn: that intimacy, domesticity and caretaking do not always come packaged together; that marriage should not be the only way to protect one’s children, property and health; that having a family shouldn’t be a requirement for full citizenship; and that conventional respectability shouldn’t be the only route to social acceptance.

Many of the undergraduates at the college where I teach cannot remember a time when same-sex marriage was unthinkable. But for most Americans alive today, to come out as gay meant accepting that we would never wed. It meant that we who decided to come out had little choice but to empathize with the excluded. We were not, for obvious reasons, the marrying kind; that was part of what made us special.

For some of us, marriage will be a ticket out of the margins. But it would be a tragedy if, vindicated by the Supreme Court, many of us proclaim a premature victory, overlooking those of us who are still left out, and many more people around the world for whom the quest for basic recognition is much in doubt. Betraying our history — forgetting what it has meant to be gay — would be a price too high to pay.

What Does Dred Scott and Lochner v. New York Have To Do with Same-Sex Marriage?

I commented in my last blog entry on Chief Justice Roberts references to two highly charged and symbolic cases, Dred Scott and Lochner v. New York.

In the Washington Post,  David Bernstein takes aim at Roberts for his use of Lochner in his dissent:

Chief Justice Roberts invokes Lochner v. New York by name no less than 16 times in his dissent.

Not the real Lochner v. New York mind you, a relatively modest opinion, grounded in precedents holding that the Fourteenth Amendment protects liberty of contract in the absence of a valid police power rationale for the infringement.

The real Lochner held that a criminal law imposing maximum hours on bakers was not a justified infringement of liberty of contract under the police power because though it was defended as a health law, the government presented no evidence that the baking was especially unhealthful, while the plaintiff presented strong evidence to the contrary.

The real Lochner did not even inhibit governments from imposing maximum hours laws in other circumstances – the Supreme Court upheld the next dozen or so maximum hours cases to come before it.

Instead, Roberts invokes the Lochner of historical myth.  This Lochner purportedly had its roots in Dred Scott v. Sanford; was based on “economic theory” and “Social Darwinism;” led the Supreme Court to “str[ike] down nearly 200 laws as violations of individual liberty;” and “empower[ed] judges to elevate their own policy judgments to the status of constitutionprotected ‘liberty'” and convert[] personal preferences into constitutional mandates” based on “naked policy preferences.”

Admittedly, all these criticisms of Lochner were prevalent when Roberts went to law school.  However, thirty-plus years of scholarship... soundly rebut each of Roberts’s assertions.

I suppose it will always be a matter of opinion the extent to which any given Supreme Court ruling reflected the Justices’ personal policy preferences, but there is now virtually a scholarly consensus that... regardless of the extent to which one believes the Court was influenced by the Justices’ policy preferences, the relevant opinions relied on standard jurisprudential arguments, not naked policy preferences.

It’s also worth noting that while Roberts proclaims that one can utterly reject Lochner and related cases while still protecting fundamental rights, as I explain in a recent article, the fact is that fundamental rights jurisprudence has its roots in such Lochner era cases as Buchanan v. WarleyPierce v Society of Sisters, and Meyer v. Nebraska....

As I wrote at the end of my book, when the Justices use Lochner “as shorthand for what they consider the activist sins of their opponents, they are substituting empty rhetoric for meaningful constitutional argument.”  And their understanding of Lochner is always inaccurate to boot.

Perhaps an even better reason to give up on invoking the mythical Lochner is that it doesn’t work.  Has any Justice ever even contemplated changing his vote because the other side accused him of mimicking Lochner?

Amy Davidson in the New Yorker writes a lengthy article about Dred Scott and Obergefell:

“They can do same thing that Abraham Lincoln did about the Dred Scott decision of 1857,” Mike Huckabee, the former governor of Arkansas, said, speaking of what conservatives might do about Obergefell v. Hodges, the Supreme Court decision in favor of marriage equality.  “He simply ignored the ruling and said, ‘That’s not correct.’”  Huckabee wasn’t alone.  Rick Santorum, who, like Huckabee, is running for President, said, “Just as they have in cases from Dred Scott to Plessy, the Court has an imperfect track record.”  Penny Nance, the conservative activist,* wrote, “This case is about much more than marriage and will go down in history alongside other appalling Supreme Court rulings, like Dred Scott and Roe."

The comparison to marriage equality seems odd and forced, yet Chief Justice John Roberts also made it, in his dissent to the Obergefell decision.  And even he wasn’t the first:  the alarm about a new Dred Scott has been heard, from activists like Ralph Reed and in the columns of the National Review, at least since the Windsor decision did away with the Defense of Marriage Act, two years ago.  What is going on here?  What does Dred Scott really have to do with Obergefell?

In part, Dred Scott is simply being used to give Obergefell a bad name—as pure invective, another way to call the decision rotten and the Supreme Court deluded.  This is low enough; Dred Scott is a truly degraded decision, in a way that no other of the Court, conservative or liberal, has since matched.  And, in part, the analogy reflects the notion, held by some contemporary conservatives, that they are now the “real” victims of bigotry.  

Roberts disparages the Obergefell decision, but he also does something more subtle.  His argument is that both Obergefell and Dred Scott are the results of caring too much about “substantive due process.”  Due process is the guarantee, made in the Fifth and Fourteenth Amendments, that a person can’t be deprived “of life, liberty, or property, without due process of law”; “substantive” means that this guarantee is more than formalistic (or “procedural”).  In Roberts’s view, Justice Roger Taney’s opinion for the majority in the Scott case and Justice Anthony Kennedy’s in Obergefell are of the same ilk.  In the first, the Court found that slave owners couldn’t be deprived of slaves; in the second, it found that gays and lesbians can’t be denied marriage—but both, to Roberts, are cases of due process gone wild.

On his side, Roberts says, are history and the democratic process.... 

And who do same-sex couples think they are, going to the federal courts, when they should, in Roberts’s view, be politely organizing petition drives for referendums in their respective states?   Kennedy’s decision means that they will put aside such projects and, with them, the opportunity to win “true acceptance,” as Roberts puts it, in a phrase of stunning condescension, “just when the winds of change were freshening at their backs.”

This brings him back to Dred Scott.  He writes, “Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.  If I were a legislator, I would certainly consider that view as a matter of social policy.  But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”

This is, to borrow Noonan’s word, an appalling argument, and not only because the results—Dred Scott constrains liberty and Obergefell expands it—are so disparate.  Nor is the problem just that Roberts so crudely misrepresents Kennedy’s argument.  Rather, Roberts is most wrong when it comes to which side in the marriage debate has inherited the Dred Scott legacy.  Kennedy’s opinion, far from being the poisoned product of the Taney majority, is the honorable heir of the Dred Scott dissents.

The vote in Dred Scott was 7-2, and every Justice wrote an opinion.  Only one, a concurrence by Robert Grier, could be called short.  The others add up to well more than a hundred thousand words.  A couple of the majority opinions make different arguments than Taney’s does, but they effectively end up at the same place.  The tone is often angry; one of the two dissenters, Benjamin Curtis, resigned from the Court a few months after the decision came down, in March of 1857....  Reading the opinions, one hears, most of all, the rank expressions of injustice that led to the Civil War.  But there are also previews of the constitutional questions raised in the marriage debate.  And again and again, the opinions for the majority, the ones that are now regarded as discredited, sound the same notes that opponents of marriage equality do today.

One of the strange things about Roberts’s parallel is that it ignores the identity of the plaintiff, Dred Scott himself.  He had been purchased by a Dr. John Emerson, in Missouri.  Emerson, who was an Army surgeon, brought Scott to Fort Snelling, in what was then part of the Wisconsin territory (now Minnesota) and a place where slavery was forbidden as part of the Missouri Compromise.  After a period of a few years, Emerson took him back to Missouri.  After Emerson died, Scott sued, arguing that Emerson had effectively emancipated him when he took him into free territory.  (There was a body of law saying that this could be the case if a master voluntarily brought a slave to a free state.)  After losing in state court, Scott brought it to federal court, on the grounds that he and his putative owner were citizens of separate states.  He also sought freedom for his wife, Harriet—whom he had met at Fort Snelling and married after her owner had transferred her to Emerson—and of his two daughters.  The elder child, Eliza, had been born on a steamboat named Gipsey as it sailed on the Mississippi, in waters that were free.  Lizzie was born after Emerson “removed” her parents back to Missouri—that is, after they believed they ought to have been free.  As the historian Lea VanderVelde has noted, Dred Scott only sued after Emerson’s widow, Irene, refused to let him buy his family from her for three hundred dollars.  Likely, she thought that the two little girls would be worth more on the market.

Justice Taney’s first finding in Dred Scott was that Scott had no right to sue in federal court because, although he was born in the United States, he was not a citizen.  This was not because he was a slave—Scott said that he wasn’t one, after all—but because he was a black man in America, whose ancestors were “of pure African blood” and had arrived in America as slaves.  This is part of what makes the Dred Scott case so shocking:  it is about race as much as it is about the legal institution of slavery.  According to Taney’s ruling, a black man born free in Brooklyn was not a United States citizen, even if New York said that he was a citizen of that state.  (Taney offered some pained digressions about “mulattoes.”)  This hardly seems like an excessively strong due-process ruling; really, it is a pathetically weak one.  To read it otherwise is to write out Scott and his family as surely as Taney did.  The case only appears to turn on the deprivation of the slave-owner’s property if one ignores the deprivation of Scott’s right to not be property.

Why shouldn’t Scott have been a citizen?  Because of history and the democratic process, Taney claimed; because of what the word citizen meant to the founders, and because of their views of black people, who, he wrote, “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”  He added that the fact that they could be bought and sold was “regarded as an axiom in morals as well as in politics.”  Taney was shameless enough to quote the Declaration of Independence’s words about all men being created equal, and then to write that they would “seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood.  But it is too clear for dispute that the enslaved African race were not intended to be included.”  His judicial hands, therefore, were modestly tied.  No “change in public opinion” about the races “should induce the court to give to the words of the Constitution a more liberal construction.”

Who, Taney asked, do we think we are, to question what the Founders—men “high in literary acquirements, high in their sense of honor”—intended?  “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws.  The decision of that question belonged to the political or lawmaking power.”  And so the Court left slavery up to the states; the federal government’s only role was “protecting the rights of the owner.”

It was only at this point that Taney and others in the majority became fixated with the question of whether a slave owner should lose his “property” if he decided to settle out West.  This led to the second part of the decision:  stamping as unconstitutional the section of the Missouri Compromise that kept slavery out of the territory north of Missouri—including Fort Snelling.  As Taney saw it, the compromise would have foreshortened the “democratic” processes by which states carved out of that territory should be able to decide if they wanted to keep slaves.  In a practical sense, such processes had already done their work: three years earlier, the Kansas-Nebraska Act had invalidated those sections of the Compromise, by saying that the “popular sovereignty” of white men should decide the slavery question in those territories.

In the Fourteenth Amendment, which was added after the Civil War, the due-process clause is followed, in the same sentence, by the equal-protection clause, which says that a state cannot “deny to any person within its jurisdiction the equal protection of the laws.”  The Roberts Court was considering Obergefell as a Fourteenth Amendment case.  Kennedy, after arguing, based on a long series of Court precedents, that marriage is a fundamental right, relies on both clauses.  He writes that they inform each other, a line of reasoning that Roberts refuses to deal with by saying that it is “quite frankly, difficult to follow.”  It is not.  The Fourteenth Amendment, with its joining of these concerns, was consciously framed as a riposte to Dred Scott; and this is Obergefell’s lineage.  But there are even more ways in which, after reading the Dred Scott opinions, that one can see that Roberts got it backward.

Every Court has its Antonin Scalia.  In 1857, it was Peter Daniel, of Virginia.  He was the one who went on about how giving a black person citizenship would degrade the institution.  But he was no better at explaining this contention than are those who have maintained that marriage equality is an insult to heterosexual unions.  He wrote, “It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can alter the essential character of that property.”  Daniel’s decision is worth reading only if one thought that a Justice couldn’t be worse than Taney (or Scalia), and maybe for the long block quotes from Gibbon’s “The History of the Decline and Fall of the Roman Empire.”

Roberts called Kennedy’s rhetoric “glossy”; both he and Scalia mocked his talk of the plaintiffs’ eternal love as lofty.  But why shouldn’t it be?  Romance has its place.  After reading all seven majority opinions in Dred Scott, it is a balm to come across two sentences in John McLean’s dissent that read like a plea:  “A slave is not a mere chattel.  He bears the impress of his Maker, and is amenable to the laws of God and man, and he is destined to an endless existence.”

McLean acknowledged both the sorry racial views of the Founders’ time and the allowance for slavery in the Constitution, but he suggested that the language used could have a better meaning in a freer era.  Madison, he noted, was careful to keep out of the Constitution words that “convey the idea that there could be property in man.”  (Indeed, the Constitution never refers to a “slave” but to a “person held to service or labor.”)  There was always more of a debate about slavery, and a consciousness of wrong, than Taney let on.  The Constitution has, built into it, a hope for change.

As McLean put it, “I prefer the lights of Madison, Hamilton, and Jay as a means of construing the Constitution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations.  I do not like to draw the sources of our domestic relations from so dark a ground.”  He added, “If we are to turn our attention to the dark ages of the world, why confine our view to colored slavery?  On the same principles, white men were made slaves.  All slavery has its origin in power, and is against right.”

McLean was born in 1785; he turned seventy-two a few days after the Dred Scott decision was issued.  The other dissenter, Curtis, was, at forty-seven, one of the youngest members of the Court.  He, too, argued that the Founders intended for their conception of freedom to unfold further...

[He described] the living Constitution of the liberals on today’s Court, not the entrenched document of the marriage dissenters.  Curtis also called Taney on his view of the past, which was simplistic to the point of being an ahistorical lie.  Free-born black New Yorkers had, since the founding, at least been citizens of their state, for example; the Taney majority, by saying that this did not make them American citizens, recognized them as having only what Ruth Bader Ginsburg might call skim-milk citizenship.

The circumstances of slavery are more extreme than anything we’ve faced in this century.  Dred Scott, though, is a reminder of why Justices can’t always sit happily ensconced in original intent and wait for every state to come around.  The decision, where it mattered most, was not judicial overreach; it was judicial underreach.  It cut off the possibility that, through mechanisms like lawsuits brought by a middle-aged black man living out West, American slavery might be checked as the country grew, or at least have its character changed—that we were on the road to freedom. It was a decision that attempted to make the status quo of chattel slavery untouchable and beyond debate.  (It failed:  outrage over the decision in the North helped get Lincoln elected.)  And yet Roberts cites Dred Scott as a hard lesson in “the need for restraint,” one that he believes Kennedy dangerously ignores as he “exalts the role of the judiciary in delivering social change.”  But Dred Scott didn’t deliver social change; would that it had.

Reading the Dred Scott dissents also provides reminders both of the ways in which marriage has changed and what it means to say that it is a fundamental right.  For example, Harriet Scott was, in some ways, in a different legal position than her husband—she was “sold and delivered” to Emerson in what ought to have been free territory—but under the principle of coverture, by which a wife’s interests were subsumed in her husband’s, her case was folded into his, and his became the guiding one.  That they had, while at Fort Snelling, contracted a legal marriage was in itself unusual—slaves were generally not allowed to marry—and it inspires some of the strongest passages in Curtis’s dissent.  Their wedding was performed with Emerson’s permission and, Curtis wrote, this was a material fact in deciding Scott’s “status”:  “there can be no more effectual abandonment of the legal rights of a master over his slave than by the consent of the master that the slave should enter into a contract of marriage in a free State, attended by all the civil rights and obligations which belong to that condition.”  Marriage made Scott free, and from that state there was no going back...

Curtis asked, “Does any law of the State of Missouri impair the obligation of that contract of marriage, destroy his rights as a husband, bastardize the issue of the marriage, and reduce them to a state of slavery?”

One hears an echo of this question when Kennedy writes about the plaintiff James Obergefell, who married John Arthur, in Maryland, and then, when Arthur died, in Ohio, had his widowhood denied by that state....  One hears it, too, when Kennedy writes of how laws banning same-sex marriage “harm and humiliate” children who “suffer the stigma of knowing their families are somehow lesser.”  They are not, thankfully, harmed in the same way that Eliza and Lizzie Scott were.  Being unable to give a legal meaning to the relations between family members was one of the central traumas of the slave experience.  It is why Roberts’s assertion that the Court’s precedents on a right to privacy have nothing to do with access to marriage—“because petitioners do not seek privacy.  Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits”—is so hollow.  There are material benefits to marriage, and marriage equality secures them, but a wedding isn’t crucial just because people can show off and get stuff; marriage is part of people being secure in their families and homes and having a recognized private space.  It is, as Curtis put it, a status and a condition.  Slavery is a battle we’ve won, and the fights that are left are hopefully lesser ones.  But that defining victory can still instruct us, among other things, about the link between marriage and liberty.

Perhaps the best response to the attempts to besmirch Obergefell by associating it with Dred Scott comes in the form of a question.  We all agree that the Taney majority decision is something to be ashamed of.  So what would a Dred Scott decision we could be proud of look like?  It might go even further than McLean and Curtis did.  It would refuse to be constrained by the prejudices of the past in reading the Constitution’s promises.  It would worry about the dignity of Eliza and Lizzie, and recognize that their father, in his suit, deserved due process, even if the law had previously excluded him.  It might even be lofty and immodest.  It would be concerned with the ideal of full citizenship and with the ways this country still falls short of it.  It might look a lot like Kennedy’s decision.

Miscellaneous Articles

Sheryl Gay Stolberg's, "Justice Kennedy's Tolerance Is Seen in His Sacramento Roots," provides an interesting read about the background of the person who "has emerged as an unlikely gay rights icon."

Here's one article that says same-sex marriage will make America healthier (based upon the fact that studies show that those in happy marriages live longer than single people).

James Taranto in the Wall Street Journal wrote of the significance of the date on which the decision was announced:

One surprise [in Obergefell] was that the decision came down today [on June 26] rather than next Monday, the last day of the court’s term.  Someone on Twitter the other day (sorry, we forget who) speculated that might happen because it is the anniversary of both of the last two big gay-rights cases, Lawrence v. Texas (2003, invalidating state sodomy laws) and U.S. v. Windsor (2013, requiring federal recognition of same-sex marriages licensed under state law).  Whether or not that’s coincidence, look for June 26 to become something of an unofficial holiday for gay Americans.

Allowing same-sex couples to marry does not solve all or even most of the problems posed by still prevalent discrimination.  This article describes "the next front in the battle for gay rights":

With the Supreme Court's decision today striking down state bans on gay marriage, gay and lesbian people are now fully equal in the eyes of the law.  Right?

Well, not exactly.  There's still a big hurdle: No federal law currently prevents employers from discriminating against people on the basis of sexual orientation.  So while gay, lesbian and bisexual people may have equal rights in love, they're still far from equal at work.

It's not just semantics.  Multiple studies have found that gay and lesbian people face higher rates of employment discrimination and harassment, whether it's through denial of certain health benefits, vandalism of personal property, or bias in hiring.  (Rates are particularly high for transgender people, although according to the Equal Employment Opportunity Commission, they are protected under the prohibition of discrimination on the basis of sex).

The story isn't as bad for people in the 21 states and the District of Columbia that have taken it upon themselves to ban workplace discrimination on the basis of sexual orientation.  And last year, President Obama signed an executive order that does the same for federal workers.  But that leaves private sector workers and local government employees in several very populous states, like Texas and Florida, with few legal protections....

Meanwhile, much of corporate America has taken action on its own.  The HRC's 2015 Corporate Equality Index found that 89 percent of the Fortune 500 included sexual orientation in their non-discrimination policies, up from 61 percent in 2002.  Still, there are plenty of small businesses where such policies aren't official.

Activists have tried for years to fix the problem.  The federal Employment Non-Discrimination Act has been introduced in most sessions of Congress since 1994, but failed each time, most recently in 2013.  Despite strong public support for such measures, many Republicans still believe the issue should be left to the states to decide.

But now that the Supreme Court has ruled that equality in marriage is universal, it's possible that equality in work may not be far behind.

The Washington Post posted an article, "10 Key Lines from the Supreme Court Decision and Dissent - and Why They Mattered."

The Washington Post also posted an article on Justice Scalia's views on the Court as a group of "unrepresentative" elitists.

Emma Green writes in The Atlantic about how the decision will affect those who do not support same-sex marriage:

What does [the decision] mean for the shrinking number—but still substantial portion—of Americans who oppose gay marriage, particularly on religious grounds?  In their dissents to the Court’s opinion in Obergefell v. Hodges, Justices Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas worry about other Americans’ right to dissent to gay marriage, just as they have.  They worry what will happen as those who oppose gay marriage become, for the first time in this country’s history, a minority.

This is not a new fear.  Especially over the last two years, as more and more states have legalized same-sex marriage, religious conservatives have expressed anxiety about attacks on religious freedom: the cake baker who doesn’t want to work a same-sex wedding ceremony, the college that faces potential consequences for not supporting homosexuality.  In a statementoutside of the Supreme Court following the Obergefell decision, Russell Moore, the head of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, said, “We need to be the people who know how to articulate a Christian vision of sexuality that will be increasingly counter-cultural from this point on.”

On Friday, same-sex marriage supporters outside of the Supreme Court were giddy with delight—advocates have been working toward this moment for literally decades.  There was also somewhat giddy dissent:  Bobby Jindal, Louisiana’s governor and a GOP presidential candidate, suggested that the Court should be abolished.  Pike Couty, Alabama, has decided to stop issuing marriage licenses altogether.  But as Alito, Roberts, Scalia, and Thomas point out, this decision will almost certainly kick off a series of legal challenges related to religious liberty.  The justices focus on three issues in particular, some of which have already created legal and political tussles:  gay adoption; the tax-exempt status of religious organizations that wish to discriminate on the basis of sexual orientation; and the obligation of private churches and individuals to recognize and perform same-sex marriages.

As The New York Times wrote earlier this month, this decision means that “gay couples [will] for the first time be able to widely adopt children regardless of which state they live in.”  Same-sex partners have long struggled to secure adoption rights, particularly in states that place limitations on the kinds of couples that can adopt.  Mississippi, for example, has a law expressly forbidding adoption by couples of the same gender; Nebraska restricts same-sex couples from being foster parents.  These laws may face challenges in light of the Court’s decision, but another kind of law may become more common:  Earlier in June, Michigan passed a law allowing adoption agencies—even those that are publicly funded—to refuse to place children with same-sex couples if they have religious objections to doing so.  It’s unclear how this religious-liberty claim might be interpreted in light of Obergefell; this is one of the “hard questions” that will be raised by the Court’s decision, Roberts writes, and “there is little doubt that these and similar questions will soon be before this Court.”

The other example Roberts specifically calls out is the tax status of religious organizations that wish to discriminate on the basis of sexual orientation.... 

Finally, individual church leaders—and judges—will face decisions about whether to perform and recognize gay marriages.  In June, North Carolina passed a law allowing judges to refuse to issue marriage licenses altogether if they object to same-sex unions on religious grounds.  This law may only be the beginning.  “In our society, marriage is not simply a governmental institution; it is a religious institution as well,” Thomas writes.  “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

The future of gay marriage has long been a question in the United States, and on Friday, the country got an answer.  The questions and conversations surrounding gay marriage now will be of a different kind: what it means to oppose, rather than support, same-sex marriage.

The Atlantic also published a lengthy article on the history of the legal fights behind Obergefell, starting in the 1970s, How Gay Marriage Became a Constitutional Right.

In the briefs and in oral argument, the parties, attorneys and judges all seemed to be interested in history.  David M. Perry actually spoke to multiple historians about the issues:

I consulted Anise Strong, an assistant professor of history at Western Michigan University.  Strong, the author of the forthcoming book Prostitutes and Matrons in the Roman World, studies gender and sexuality in the ancient world and the use of ancient history in the modern era.  She notes that despite the approval by Plato and his social circle of “short-term, possibly unconsummated (‘platonic’) relationships between older man and teenage boys whose beards had not yet grown,” it’s true that ancient Greeks did not have gay marriage.  Instead, they favored: 

Closely endogamous marriages between uncles and nieces (and sometimes half-siblings), marriages in which women retained almost no property rights or independence and were regularly both physically segregated and violently abused, and a system in which marriage was designed explicitly to increase and safeguard the property of closely related men while encouraging the production of definitely legitimate male heirs to those men through tightly restricting access to their wives. 

Strong also notes that across the great sweep of marriage across human history, societies have often embraced polygyny.

In other words, given that most Americans would find abhorrent the types of marriages of which ancient Athens approved, why should they care whether they would have disapproved of gay marriage?  The history of ancient marriage is fascinating and important, but by citing Plato’s stance on gay marriage, the conservative justices are snatching out the one bit that’s useful to them, ignoring the broader cultural context.  It’s using history to confirm biases.

In fact, when you really dig into the history of marriage, the only consistent feature is change.  My own professional group, the American Historical Association, filed an amicus brief that leveraged the combined expertise of twenty historians of marriage.  The AHA brief used examples drawn largely from American history to show that marriage has never been solely about procreation, with issues like property management taking center stage.  Moreover, Ruth Karras, author of Unmarriages, told me in an interview that marriage has almost never been about joining one man and one woman, but instead about “two families.”  In that sense, same-sex couples looking for equal protection under the law with respect to healthcare and property rights are pretty consistent with “traditional marriage.”

That is, if there even is such a thing as “traditional marriage.”  Karras began studying the multiple forms of medieval marriage—or at least the socially-accepted and often semi-legal long-term forms of relationships—because of her frustration with the idea that, “there was some sort of time that we could go back and look at where marriage was this perfect ideal between a man and woman for purposes of reproduction or creating family.  The Middle Ages clearly haunts that formulation.”  In fact, Karras continued, for many medieval people, “traditional marriage didn't even exist.  Yes, for aristocrats there was this system, but it's really not very possible to know much about how people without any money formed and possibly didn’t form their marriages.  People seem to have this idea that until the 1960s in America, everybody was pro-marriage—in fact, in the Middle Ages a lot of people lived in other kinds of relations besides what was recognized formally as marriage.” 

Karras likes to use “clerical marriage” as a good example of how social institutions change over time.  During the later Middle Ages, the church refused to let priests marry.  And yet, clerical marriages existed all over medieval Europe, and were often recognized by neighbors and local communities, although they had no legal standing, and non-birth parents had no rights over any offspring.  She suggested this was a good analogy for the status of same-sex marriage in America over the last few decades, though it’s obviously rapidly becoming more legitimate.  Today, of course, thanks to Protestantism and Orthodox Christianity, clerical marriage is more common than clerical celibacy among Christian populations, and even half of all Catholics worldwide think priests should be able to marry. “This kind of union, [once] grudgingly tolerated and informally recognized, is now formally recognized and tolerated,” Karras said.

Today, married status still confers major legal rights for partners, much as it did in past eras.  But even that point of consistency indicates change.  These legal benefits are adjacent to the real cultural center of marriage today—love.  While the link between marriage and love dates back far into the recesses of history and literature, it was often marginal; the legal forms, particularly those affecting property, came first.  Now, thanks to the popularization of romantic marriage in the 19th century, that relationship has flipped.  In the words of historian Stephanie Coontz, “Love conquered marriage.”  ....

Decades of careful scholarship showing that the most constant element of marriage is change allowed the Court to decide that far from undermining the institution of marriage, some changes can actually strengthen it. I suspect that will be the case here.

In conclusion, two separate editorials by Frank Bruni.  In the first, written before Obergefell was decided, he writes about the history of the gay rights movement and addresses the conservative argument that the Supreme Court should have addressed gay marriage in a more gradual manner:

REMEMBER the AIDS crisis?  If you lived in a big American city during its spread, you were witness to constant sorrow and countless examples of gay people treated as second-class citizens.

One was almost certainly this: the steadfast, heartbroken man being shut out of his beloved’s final weeks — not allowed in the hospital room, not welcomed at the grave — because some family members disapproved and no law trumped their bigotry.

This was a recurring story, an infuriating leitmotif, and many gays and our allies remarked and railed that it wouldn’t be happening if committed same-sex relationships got the legal recognition that heterosexual ones did.

Sometimes we even used the word “marriage.”

That was 30 years ago.

Now we stand nervously and hopefully on the brink of a milestone.  Before the end of June, a month associated with wedding bells and wedding cake, the Supreme Court will issue a major decision about the right of two men or two women to exchange vows in a manner honored by the government.  It may well extend same-sex marriage to all 50 states, making it the law of the land.

Many Americans still oppose that. And some will argue, as they routinely do, that it has been forced on them much too quickly and that history can’t be rewritten in an instant.

Too quickly? An instant?

Nothing about this juncture feels quick if you soldiered through AIDS and the country’s awakening then to just how many gay, lesbian and bisexual Americans there are, just how profound our bonds can be, just how fiercely we’re willing to fight for them, just how ardently we ache to be included.

Nothing about it feels quick if you consider that Evan Wolfson, a chief architect of the political quest for same-sex marriage, wrote a thesis on the topic at Harvard Law School in 1983, or if you remember how passionately the issue of same-sex marriage was debated in the 1990s, when the Defense of Marriage Act, or DOMA, was passed.

Nothing about it feels quick if you’re among or you know gay and lesbian Americans who, in a swelling tide, summoned the grit and honed the words to tell family members, friends and co-workers the truth of our lives.  Our candor came from more than personal need.  It reflected our yearning for a world beyond silence and fear, and we knew that the only way to get there was through these small, aggregate acts of courage.

Same-sex marriage isn’t some overnight cause, some progressive novelty, especially not when it’s put in its proper context, as part of a struggle for gay rights that has been plenty long, patient and painful.

Yes, the dominoes of marriage equality in individual states have tumbled with a surprising velocity.  My first Op-Ed column, in June 2011, noted that New York had just become the sixth state in the country to legalize same-sex marriage.  The count today is 37 states and Washington, D.C. I’m amazed at this still.

And I marvel that just over two years ago, Hillary Clinton hadn’t yet spoken up for marriage equality, which is now such a given among Democrats that they characterize Republicans’ resistance to it as damnably backward and baldly uncivilized.  That’s an enormous change.

But it’s not so dizzying or difficult to comprehend when you think about the simple logic behind same-sex marriage: You can’t relegate the commitments and loves of an entire group of Americans to a different category, marked by a little pink asterisk, without saying that we ourselves don’t measure up.  You can’t tell us that you consider us equal and then put perhaps the central, most important relationship in our lives in an unequal box.  It’s a non sequitur and a nonstarter.

A Supreme Court judgment for marriage equality wouldn’t be a rash swerve into uncharted terrain.  It would merely be a continuation of the journey of gay Americans — of all Americans — across familiar land, in the direction of justice.  It would be a stride toward the top of the hill.

And the first steps go back much further than 2011, than DOMA, than AIDS, even than the Stonewall riots of 1969.

Next month, in fact, is the 50th anniversary of the first “annual reminder,” a picket in Philadelphia for gay civil rights.  It commenced on July 4, 1965, with just a few dozen gays and lesbians, and occurred yearly through July 4, 1969, as “Gay Pioneers,” a short 2004 documentary, eloquently chronicles.

Three newer documentaries also underscore the sweat and tears that preceded the present moment.  PBS just posted on its website “Limited Partnership,” the story of a committed gay couple’s efforts, starting in the 1970s, to prevent United States immigration officials from deporting one of them.  On Monday, Yahoo Screen will introduce “Uniquely Nasty: The U.S. Government’s War on Gays,” which rewinds to the 1950s.

And a week later, HBO will begin showing “Larry Kramer: In Love & Anger,” about the irrepressible AIDS activist who wrote — and lived — “The Normal Heart.”  Watch it.  I can’t predict your response to Kramer’s dudgeon and decibel level, but I can guarantee that you won’t ever again regard the forward march of L.G.B.T. Americans as easy or trendy or fleet.

Alfred Kinsey told Americans in the late 1940s just how common same-sex activity was.  The Mattachine Society, one of the earliest gay rights groups, appeared in 1950, in Los Angeles.  The Daughters of Bilitis, a lesbian political organization, appeared in 1955, in San Francisco.

From those seeds, the legalization of same-sex marriage flowered, and no shortage of harsh winters intervened.

There have been ruined careers, scuttled adoptions, sanitized obituaries.  There have been millions of same-sex couples who were married in the eyes of each other, of everyone around them and of any truly righteous god, and they waited and waited for the government to catch up.

Ask Jim Obergefell.  His is one of the cases that the Supreme Court is about to decide. He sued Ohio to have his name added as a surviving spouse on the death certificate of his husband, who died in 2013.  It wasn’t just a few years before then that they began making their life together. It was two decades earlier.

Ask Edie Windsor.  Her protest of the estate taxes that she was ordered to pay — but that a widow with a dead husband instead of a dead wife would have been spared — prompted the Supreme Court to gut DOMA two years ago.

She was married in Canada in 2007.  When her wife first proposed to her, she gave Windsor a brooch instead of a ring, so that the diamond didn’t prompt questions from co-workers.

That was in 1967: nearly half a century ago.  So don’t tell her that the idea of same-sex marriage needs more time to ripen.

 Below is Bruni's very personal reflection on the decision:

HOW will the Supreme Court’s ruling on same-sex marriage alter the way Americans feel about the country, and how we feel about ourselves?

I can’t speak for everyone. But I can speak for this one 12-year-old boy.

He stands out among his siblings because he lacks their optimism about things, even their quickness to smile. He has a darkness that they don’t. He’s a worrier, a brooder. He’s also more self-conscious. He can’t get comfortable with himself.

And while this may be his wiring, it may also be something else. He has noticed that his heart beats faster not for girls but for other boys, and the sensation is as lonely and terrifying as it is intense.

He doesn’t know what to do about it. He’s sure he’ll be reviled for it, because he hears all of the bigoted jokes that people aren’t necessarily aware that they’re telling, all of the cruel asides that they don’t always realize that they’re muttering. He craves some assurance that he’ll be spared their disdain and disgust. But the world hasn’t given him any.

I can speak for a 16-year-old boy. He has a word for what he is — “gay” or “homosexual” or something worse, depending on who’s talking — but he doesn’t have answers for what that’s going to mean. At the mall one afternoon, he surreptitiously breaks away from his friends and steals into a bookstore. He’s looking for something to quiet the fear inside him.

He finds an examination of “being gay in America” that’s called “Alienated Affections.” The phrase rattles him. It sounds like a diagnosis or sinister prophecy. To understand it better, he riffles hurriedly through the pages, glancing over his shoulder repeatedly to make sure that no one’s watching, listening carefully for any approaching steps.

His nerve doesn’t last long; he manages to take in only a reference to drag queens, an explanation of bondage, an exploration of homoeroticism among prisoners.

These are his options? Feathers, chains or the chain gang?

The title of one chapter in particular catches his eye: “Beyond Gay or Gloomy: The Ordinary Miseries of Everyday Life.” Gloomy? Miseries?

He’s not sure he has the stomach for this, or the strength.

He closes the book, along with a bit of his heart.

I can speak for a 20-year-old college student. He has opened up to his family and to many friends about who he is, not because he possesses any particular courage but because being honest involves less strain, less effort, than keeping secrets and dreading their exposure. Also because he wants to meet men like him, develop crushes he can act on, even fall in love.

And so far, there’s been no terrible price. His family doesn’t wholly understand him, but they want and resolve to. For every friend who now keeps a distance, there’s another who draws closer.

He’s overwhelmed with relief.

But he wishes there were a way to be honest without wearing a tag, without being put in a category, without one adjective preceding all others when people describe him. Their tendency do so is a constant reminder that he’s not “normal.”

So are the laws of his land. It’s illegal in many places for two men or two women to have sex. It’s legal in most places for them to be fired because of who and how they love. Even the language in public discussions sends an ugly signal. People are congratulated for their “tolerance” of gays and lesbians.

He is someone to be tolerated.

And he is always having to explain, to one inquisitive person after another, that he didn’t choose this path, that it’s not a statement or a caprice, that he neither rues nor relishes it, that it’s just there: fundamental, foundational, forever. The ritual grinds him down.

I can speak for a 30-year-old man who owns and lives in a house in the suburbs with another man his age. They’re romantic partners. A couple. A white picket fence surrounds the yard behind their red brick colonial. It keeps the German shepherd from straying off.

But this fantasy has been edited, abridged. The man and his partner have never spoken of children, because that would involve special, intricate arrangements and because most people don’t really approve.

They have never hugged in the front yard, never kissed in front of a window, because what would the neighbors think? What would the neighbors do?

And while he thinks of these as minor adjustments, to the extent that he thinks of them at all, there’s a toll to such vigilance. It’s that old self-consciousness in a new form. And there’s a longing beneath it — to be appraised solely on the expanse and the limits of his talents, on the goodness he musters and the goodness he lacks. To be deemed and regarded as the equal of anybody else.

I can speak for a 45-year-old man who marvels gratefully at the changes all around him. Although he himself doesn’t plan to have kids — he has too little energy at this point, and is too set in his ways — he sees many gay and lesbian couples starting families. If they live in the right places, they pretty much blend in.

But there are still wrong places, and there’s still plenty of oxygen for religious extremists who brand people like him wretched, evil, godless. In some countries, these extremists do more than brand. They kill, and it’s a horrific thing to know and to see. In the man’s country, the extremists don’t go that far, and they’re increasingly a minority, but they’re undaunted, unabashed and too often indulged.

He wonders when he’ll see more cracks in that indulgence. It’s time.

In 2015, on the last Friday of a month fittingly associated with both weddings and gay pride, there’s something bigger than a crack. There’s a rupture.

Following a few extraordinary years during which one state after another legalized same-sex marriage, the Supreme Court rules that all states must do so, that the Constitution demands it, that it’s a matter of “equal dignity in the eyes of the law,” as Justice Anthony Kennedy writes.

I can speak for a 50-year-old man who expected this to happen but still can’t quite believe it, because it seemed impossible when he was young, because it seemed implausible even when he was a bit older, and because everything is different now, or will be.

Tomorrow’s 12-year-old won’t feel the foreboding that yesterday’s did. Tomorrow’s 16-year-old will be less likely to confront, sort through and reject so many sad stereotypes of what it means to be gay or lesbian.

There won’t be so many apologies and explanations for the 20-year-old, 30-year-old or 45-year-old, and there won’t be such a ready acceptance of limits. There won’t be the same limits, period.

And that’s because the Supreme Court’s decision wasn’t simply about weddings. It was about worth. From the highest of this nation’s perches, in the most authoritative of this nation’s voices, a majority of justices told a minority of Americans that they’re normal and that they belong — fully, joyously and with cake.