Supreme Court Rules Same-Sex Marriage Is A Constitutional Right

Same-sex marriage is a fundamental constitutional right guaranteed under the 14th Amendment, the U.S. Supreme Court ruled today, in a profoundly individualistic and libertarian 5-4 decision penned by Justice Anthony Kennedy and opposed by the rest of the court’s conservatives.

Saying “marriage is a keystone of our social order” and “inherent in the concept of individual autonomy,” Kennedy’s opinion in Obergefell v. Hodges makes gay marriage the law of the land in every state. In so doing, the court went past even the arguments advanced by Solicitor General Donald Verrilli and some gay-rights advocates who urged the more modest approach using the Equal Protection Clause to strike gay-marriage bans.

In a 34-page opinion that was matched in length by dissents by Chief JusticeJohn Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, Kennedy acknowledged that same-sex marriage is a relatively new concept, but said basic Constitutional notions of freedom mean “same-sex couples may exercise the right to marry.”

“Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons,” Kennedy wrote. “Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”

The decision drew strong dissents from the court’s conservatives, who accused the majority of substituting their policy views for those of the voters and potentially fomenting the sort of long-running culture war that followed the court’s Roe v. Wade decision legalizing abortion.  The issue of whether gay couples can marry is “not of immense personal importance to me,” Scalia wrote in his dissent.

“It is of overwhelming importance, however, who it is that rules me,” Scalia wrote. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

Kennedy’s decision, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, is surprising in its sweep, said William Eskridge, a constitutional law expert with Yale Law School who wrote a brief supporting same-sex marriage for the libertarian Cato Institute. The decision hews to Kennedy’s reasoning in Lawrence v. Texas, a 2003 decision striking down anti-sodomy laws as an unconstitutional intrusion into the private choices of individuals.

“It is libertarian,” Eskridge told me. “It’s like Lawrence. It’s the freedom for Americans to make choices regarding their relationships, their childrearing decisions, and to have those choices respected by the states the same as everybody else’s.”