Monday, June 29, 2015

Same-Sex Marriage is a Constitutional Right



In 2013, The Supreme Court struck down part of the Defense of Marriage Act (defining marriage as between a man and a woman), requiring federal agencies to recognize same-sex marriage performed in states where it is legal.  Justice Anthony Kennedy, who wrote that decision in 2013 as well as last Friday, struck down restrictions in thirteen states that didn’t allow gay marriage.

Kennedy’s rationale was “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… There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”

The Constitution Evolves

“…without recognition, stability, and predictability that marriage offers,
 writes Kennedy, “ the children of these couples suffer the stigma of knowing their families are somewhat lesser.”

“The constitution’s power and endurance rest in the Constitution’s ability to evolve along with the nation’s consciousness,” states Kennedy. In a spring Wall St. Journal/NBC News poll, 77% of Americans said they personally know or work with someone who is gay or lesbian, up from 62% in 2004.

Those Who Dissented

With Justices Ginsburg and Sotomayer in accordance with Kennedy,  and Justices Thomas, Roberts, Jr., Alito, Jr. and Antonin Scaila dissenting, the high court’s 5-4 ruling reflected the country’s shift in public attitudes toward gays and lesbians.

Unlike Kennedy, religious groups do not interpret the constitution as a living, evolving document, but as the Framers originally intended it.  More conservative and religious justices and a number of religious groups are annoyed at Kennedy for failing to mention The First Amendment’s “free exercise” clause.  Religious rites aren’t limited to preaching and teaching , but also entail an individual’s and organization’s “free exercise” of faith, a wide swath of activities that run from sacred ceremonies to performing charitable works and running business according to religious principles.

Evangelicals, who make up about 25% of the country’s population, pledged to fight the legal implications of Friday’s rulings. Kennedy, however, states in his majority opinion, that “it must be emphasized that religions and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

The Future of Same-Sex Marriage
No doubt, the Conservatives will keep fighting.  In the interim, gay couples, some who have been together for over thirty years, will feel respect and dignity. As one of the plaintiffs Jim Obergefell who was denied signature on a death certificate of his ailing spouse, testified, after the ruling was announced, “ I started to feel a lot more like a full equal American at that moment.”