On Friday, the U.S. Supreme Court reversed the decision of the Sixth Circuit Court of Appeals and declared Tennessee’s ban on same-sex marriage violates the Fourteenth Amendment of the U.S. Constitution.
My recap of the Sixth Circuit opinion can be found here.
The Supreme Court’s decision was 5-4, with Justice Kennedy writing for the Majority and being joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. The Court writes:
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, has not been reduced to any formula. Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them it’s respect….
The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.
In other words, the Court says the Constitution is a “living” document intentionally written in broad and flexible terms such that contemporaneous society should be considered when interpreting key constitutional provisions.
The Court holds the Fourteenth Amendment compels the conclusion that same-sex couples may exercise the right to marry. The rationale for this holding is fourfold:
1. The Court’s relevant precedents hold the right to personal choice regarding marriage is inherent in the concept of individual autonomy;
2. The Court’s relevant precedents hold the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals;
3. Protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education; and
4. The Court’s relevant precedents and the Nation’s traditions make clear that marriage is a keystone of our social order, noting the government bestows benefits to married couples on issues like taxation, inheritance and property rights, rules of intestate succession, spousal privilege in the law of evidence, hospital access, medical decisionmaking authority, adoption rights, the rights and benefits of survivors, birth and death certificates, professional ethics rules, campaign-finance restrictions, workers’ compensation benefits, health insurance, and child custody, support, and visitation rules.
On the third point above, the Court states:
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also sever the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
Supporting the concept of a dynamic, “living” Constitution, the Court says:
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era….
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.
Regarding the Fourteenth Amendment analysis, the Court concludes:
Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.
These considerations lead to the conclusion that 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. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.
Addressing the dissenters’ argument that this fundamental right should be left to the democratic process, the Court responds:
Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights…. Thus, when the rights of persons are violated, the Constitution requires redress by the courts, notwithstanding the more general value of democratic decisionmaking….
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act…. This is why fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.
In other words, the very reason we have a Constitution is that some rights are too important to leave up to the democratic process. Moreover, same-sex couples should not have to wait to have their rights recognized. The children of same-sex couples are growing up without their parents being married.
The Court also notes “these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”
The Court concludes with what will surely be the most-quoted language from the opinion:
The Court, in this decision, holds that same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold — and it now does hold – that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may end your even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respected so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They asked for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.
The four dissenting Justices — Roberts, Scalia, Thomas, and Alito — each wrote separate dissenting opinions but everyone except Alito joined the dissent authored by Chief Justice Roberts. The main thrust of Roberts’s dissent is the philosophical disagreement over constitutional interpretation, i.e., “living” Constitution (a.k.a. loose constructionism) versus original intent (a.k.a. strict constructionism or originalism). Roberts writes:
The majority  explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy….”
The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny then this right.” Whatever force that belief may have as a matter of moral philosophy, it has no  basis in the Constitution….
The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution injuring over all of recorded history cannot inhibit judicial policymaking, what can? … The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now….
If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Justice Scalia embarrasses himself with a dissenting opinion not worthy of a Supreme Court justice. He characterizes the decision as a “judicial Putsch.” He says the Court’s reasoning “has descended from the discipline that legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” If he ever joined an opinion with such reasoning, he says he “would hide my head in a bag.”
Justice Thomas, himself an originalist, does no better, saying the concept of “liberty” in the Fourteenth Amendment refers “only to freedom from physical restraint,” which at least is (arguably) intellectually consistent with his belief in originalism. Later, he goes completely off the rails when he says “[s]laves did not lose their dignity (anymore than a lost their humanity) because the government allowed them to be enslaved… The government cannot bestow dignity, and it cannot take it away.” What planet is he on?
Justice Alito highlights the interpretive divide on the Court with this passage:
I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
K.O.’s Comment: (1) The 5-4 philosophical divide between the “living” Constitution justices and the “original intent” justices shows (a) how close we are to upending decades of constitutional law we now take for granted, e.g., the right to privacy, and (b) how much federal elections matter. A Republican president in 2016 is likely to appoint more originalists who will be confirmed by Republican senators and opposed by Democratic senators. Likewise, a Democratic president in 2016 is likely to appoint more “living” constitutionalists who will be confirmed by Democratic senators and opposed by Republican senators. Elections matter. Voter turnout matters.
(2) One curious aspect of this ruling is the Court did not spell out what constitutional test it was applying to a claim of marriage equality. The Sixth Circuit opinion (and those of the other Circuits who considered the issue) contained detailed analysis of “rational basis” review under the Due Process and Equal Protection Clauses. Although the Court relied on precedent that engaged in those analyses, the Court itself did not engage in such analysis like the inferior courts did.
(3) Tennessee lawyers should expect to see substantive changes in Tennessee family law, particularly in the areas of adoption and parental rights. Terrible cases like In re Hayden C. G-J. will thankfully be no more. In addition to the full panoply of parental rights, married same-sex couples will now be entitled to financial benefits such as Social Security survivor and disability benefits, joint tax returns, spousal health insurance rights, estate planning rights — the list goes on and on.
It is an exciting time to be a family law attorney in Tennessee.
(4) Check out Stephen Colbert’s lighthearted take on the opinion:
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.