Jewish Judges (3 of 5) bring Gay Marriage to America
Chief Justice
Roberts says 5 judges stole this issue from the people.
Justice Scalia calls
it a Judicial Putsch
Newsletter published on 28 June 2015
(1) 5-4 vote for Gay Marriage welcomed by UN's Ban
Ki-moon as step
forward for human rights
(2) Of the 5 judges who voted
for Gay Marriage, 3 are Jewish
(3) How the 9 Judges Voted - from The
Atlantic
(4) Excerpts From the Supreme Court Majority Opinion
(5)
Dissenting Opinion: Chief Justice Roberts refers to the universality
of
Man-Woman marriage in other cultures
(6) Dissenting Opinion: Scalia calls it
a "judicial Putsch"
(7) Roberts "wrong about marriage practices of Kalahari
Bushmen, Han
Chinese, Carthaginians, Aztecs"
(8) On Gay Marriage, John
Roberts Invokes … the Aztecs?
(9) NYT editorial: A Profound Ruling Delivers
Justice on Gay Marriage
(1) 5-4 vote for Gay Marriage welcomed by UN's
Ban Ki-moon as step
forward for human rights
http://www.abc.net.au/news/2015-06-27/us-supreme-court-rules-in-favor-of-gay-marriage-nationwide/6577294
US
Supreme Court rules in favour of same-sex marriage nationwide in win
for gay
rights movement
The Supreme Court has ruled the US Constitution provides
same-sex
couples the right to marry in a historic triumph for the American
gay
rights movement.
The court ruled 5-4 that the Constitution's
guarantees of due process
and equal protection under the law mean that
states cannot ban same-sex
marriages.
With the ruling, gay marriage
will become legal in all 50 states.
Justice Anthony Kennedy, writing on
behalf of the court, said the hope
of gay people intending to marry "is not
to be condemned to live in
loneliness, excluded from one of civilization's
oldest institutions".
"They ask for equal dignity in the eyes of the law.
The Constitution
grants them that right," the statement said.
Justice
Kennedy, a conservative who often casts the deciding vote in
close cases,
was joined in the majority by the court's four liberal
justices.
There are currently 13 state bans in place, while another
state,
Alabama, has contested a court ruling that lifted the ban
there.
President Barack Obama, in heartfelt remarks, praised the ruling
as "a
victory for America".
"Today we can say, in no uncertain terms,
that we've made our union a
little more perfect," he said at the White
House, which changed its
Twitter avatar to the rainbow colours of the
growing gay rights movement.
"This decision affirms what millions of
Americans already believe in
their hearts: when all Americans are treated as
equal, we are all more
free."
The ruling is the Supreme Court's most
important expansion of marriage
rights in the US since its landmark 1967
ruling in the case Loving vs
Virginia that struck down state laws barring
interracial marriages.
In a dissenting opinion, conservative Justice
Antonin Scalia said the
court's decision was a "threat to American
democracy".
"[The ruling] 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,"
he said.
Conservative Chief Justice John Roberts also
read a summary of his
dissenting opinion from the bench.
The decision
follows rapid changes in attitudes and policies toward gay
marriage in
America. It was not until 2003 that the Supreme Court threw
out state laws
banning gay sex.
In 2004, Massachusetts became the first state to
legalise same-sex
marriage. [...]
United Nations secretary-general
Ban Ki-moon welcomed the ruling as "a
great step forward for human
rights."
Gay marriage gaining acceptance in Western countries
Last
month in Ireland, voters backed same-sex marriage by a landslide in
a
referendum that marked a dramatic social shift in the traditionally
Roman
Catholic country.
Ireland followed several Western European countries,
including Britain,
France and Spain in allowing gay marriage, which is also
legal in South
Africa, Brazil and Canada. But homosexuality remains taboo
and often
illegal in many parts of Africa and Asia.
The Supreme
Court's ruling came in a consolidated case, pulling together
challenges
filed by same-sex couples to gay marriage bans in Kentucky,
Michigan, Ohio
and Tennessee.
Same-sex marriage was legal in 36 states and Washington,
DC. In a 37th,
Alabama, a federal court struck down the gay-marriage ban,
but the state
supreme court has stopped local officials from issuing
marriage licenses
to gay couples.
But opponents say same-sex marriage
legality should be decided by
states, not judges.
Republican
presidential candidate Mike Huckabee said: "This flawed,
failed decision is
an out-of-control act of unconstitutional judicial
tyranny."
Rick
Santorum, also a Republican presidential candidate, lamented that
five
"unelected judges redefined the foundational unit of society".
Some
opponents argue it is an affront to traditional marriage between a
man and a
woman and the Bible condemns homosexuality.
The emotions of the issue
were apparent during the court's April 28 oral
arguments in the case when a
protester in the courtroom shouted at the
justices that they would "burn in
hell" if they backed gay marriage.
Mr Obama is the first sitting
president to back gay marriage and his
administration argued on the side of
the same-sex marriage advocates.
The legal repercussions for same-sex
couples are broad, affecting not
just their right to marry but also their
right to be recognised as a
spouse or parent on birth and death certificates
and other legal papers.
Big business had urged the justices to support
gay marriage, saying in a
brief submitted in the case that inconsistent
state laws impose burdens
on companies and marriage bans can conflict with
corporate
anti-discrimination and diversity policies.
The ruling is
the latest milestone in the gay rights movement in recent
years.
In
2010, president Barack Obama signed a law allowing gays to serve
openly in
the US military.
In 2013, the high court ruled unconstitutional a 1996 US
law that
declared for the purposes of federal benefits marriage was defined
as
between one man and one woman.
Reuters
(2) Of the 5 judges
who voted for Gay Marriage, 3 are Jewish
(non-Jewish) Anthony Kennedy, a
Catholic
Sonia Sotomayor
(Jewish) Stephen Breyer, Ruth Bader Ginsburg,
Elena Kagan
https://en.wikipedia.org/wiki/Stephen_Breyer
Stephen
Breyer, SCOTUS photo portrait.jpg ... Francisco, the son of Anne
A. (née
Roberts) and Irving Gerald Breyer, and raised in a middle-class
Jewish
family.
Ruth Bader Ginsburg | Jewish Women's Archive
https://jwa.org/encyclopedia/article/ginsburg-ruth-bader
Ruth Bader
Ginsburg is the first Jewish woman (and only the second woman)
appointed
to the United States Supreme Court.
Elena Kagan -
Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Elena_Kagan
Elena Kagan (pronounced
/?ke???n/; born April 28, 1960) is an Associate
Justice ..... the eighth
Jewish justice, making three of the nine current
justices Jewish.
Dissenting Jusges: Samuel Alito, John Roberts, Antonin
Scalia, and
Clarence Thomas
(3) How the 9 Judges Voted - from The
Atlantic
http://www.theatlantic.com/politics/archive/2015/06/gay-marriage-legal-in-the-united-states-of-america/396947/
Gay
Marriage Is Now a Constitutional Right in the United States of America
On
Friday, the Supreme Court issued a 5 to 4 decision in favor of
same-sex
unions.
Emma Green
Jun 26, 2015
The first line of the U.S.
Supreme Court’s decision in Obergefell v.
Hodges, on the legality of
same-sex marriage in the United States, is as
breathtaking as it is
legalistic.
The Fourteenth Amendment requires a State to license a
marriage
between two people of the same sex and to recognize a marriage
between
two people of the same sex when their marriage was lawfully licensed
and
performed out-of-State.
There it is, the ruling that gay-marriage
advocates and opponents have
been waiting for since April when the Court
took up the case—but really,
for years long before that. There is now a
constitutional right for
people of the same sex to get married in the United
States. Related Story
A New Right Grounded in the Long History of
Marriage
The Court’s opinion—authored by Justice Anthony Kennedy, a
Catholic who
has long been seen as the possible swing vote on gay marriage,
joined by
Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and
Sonia
Sotomayor, and with four separate dissents authored and joined by
combinations of Samuel Alito, John Roberts, Antonin Scalia, and
Clarence Thomas—lists four major reasons for its decision. First,
Kennedy writes that “decisions about marriage are among the most
intimate that an individual can make.” Allowing LGBT people to marry is
a matter of personal choice and autonomy, just as it was in the Court’s
1967 decision in Loving v. Virginia, which outlawed bans on interracial
marriage.
Second, Kennedy writes, marriage is a distinctive
institution: “It
supports a two-person union unlike any other in its
importance to the
committed individuals.” Here, he points to the Court’s
opinion in
Griswold v. Connecticut, which affirmed the right of married
couples to
use birth control. “Same-sex couples have the same right as
opposite-sex
couples to enjoy intimate association.”
But then, the
decision takes an interesting turn: The Court seems to
flip the oft-used
reasoning of same-sex marriage opponents, who claim
that gay marriage is
harmful to children and families, and disruptive to
the longstanding order
of American society. In the oral arguments for
Obergefell, several justices
raised this very question—even Breyer, who
joined in the decision, said that
marriage between a man and a woman
“has been the law everywhere for
thousands of years. Suddenly you want
nine people outside the ballot box to
require states to change [this
configuration].” But on Friday, Breyer joined
four of his colleagues to
do exactly that.
“Protecting the right to
marry ... safeguards children and families and
thus draws meaning from
related rights of childrearing, procreation, and
education,” Kennedy writes.
Not all straight married couples have
children, and they’re certainly not
required to do so by law, he
reasons; the same rule should apply to gay
married couples. But more
importantly, for those gay couples that do want to
have kids—including
the many couples who adopt or have children using the
genetic material
of one parent—that their unions are less than marriage
under the law
creates a “more difficult and uncertain family life. The
marriage laws
at issue thus harm and humiliate the children.”
“Rising
from the most basic human needs, marriage is essential to our
most profound
hopes and aspirations.”
Finally, Kennedy affirms that marriage is “a
keystone of the Nation’s
social order.” It is the institution at the center
of the United States’
legal and educational structures, and because of this,
“it is demeaning
to lock same-sex couples out of a central institution of
the Nation’s
society, for they too may aspire to the transcendent purposes
of marriage.”
“Rising from the most basic human needs, marriage is
essential to our
most profound hopes and aspirations,” Kennedy writes. This
is, perhaps,
the most striking argument of all, for it is an argument about
the
nature, significance, and dignity of marriage itself. “The ancient
origins of marriage confirm its centrality, but it has not stood in
isolation from developments in law and society,” Kennedy writes, but the
“institution—even as confined to opposite-sex relations—has evolved over
time.”
The dissents from Alito, Roberts, Thomas, and Scalia are
scathing. The
chief justice argues that the Court has stepped far beyond its
bounds,
stating simply, “this Court is not a legislature.” Like his
colleagues
in the majority, he delves into the history of marriage, even
giving a
nod to one of the favorite arguments of gay-marriage opponents:
that
legalizing gay marriage is essentially a slippery slope. In fact, he
writes, the leap from heterosexual marriage to same-sex marriage is
“much greater than one from a two-person union to plural unions, which
have deep roots in some cultures around the world.” His conclusion: “The
majority expressly disclaims judicial ‘caution’ and omits even a
pretense of humility, openly relying on its desire to remake society
according to its own ‘new insight’ into the ‘nature of injustice.’ …
Just who do we think we are?”
Scalia’s dissent carries a much more
mocking tone—indeed, he says he
concurs with Roberts entirely, but is
writing a separate dissent to
“call attention to this Court’s threat to
American democracy.” He
diagrams several of Kennedy’s sentences and states
his astonishment at
“the hubris reflected in today’s judicial Putsch.” His
main objection is
that the Court has stepped beyond the boundaries of the
law—not just in
Obergefell, but over the course of several recent
decisions.
“With each decision of ours that takes from the People a
question
properly left to them—with each decision that is unabashedly based
not
on law, but on the ‘reasoned judgment’ of a bare majority of this
Court—we move one step closer to being reminded of our impotence,” he
writes.
“The majority and omits even a pretense of humility ... Just
who do we
think we are?”
And there were hints of the battles ahead.
In each of their dissents,
Thomas and Alito address the question of
religious liberty, arguing that
this decision will make it much more
difficult for those who oppose gay
marriage on the basis of faith to
exercise their beliefs.
“It will be used to vilify Americans who are
unwilling to assent to the
new orthodoxy,” Alito writes. “In the course of
its opinion, the
majority compares traditional marriage laws to laws that
denied equal
treatment for African-Americans and women. The implications of
this
analogy will be exploited by those who are determined to stamp out
every
vestige of dissent.” Thomas predicts that the decision will present
challenges for churches and other religious organizations that must now
determine whether to recognize civil same-sex marriages, and Roberts
warns of challenging questions about the tax status of religious
non-profits, like colleges, that discriminate on the basis of sexual
orientation.
Let those challenges come. Opponents of same-sex
marriage have long
argued that the institution of marriage is sacred, and
that gay unions
would change its very nature. They have contended that it
has been
historically defined as a union between one man and one woman, and
that
the Court does not have the authority to change that definition. With
this decision, the Supreme Court of the United States dissents.
(4)
Excerpts From the Supreme Court Majority Opinion
http://abcnews.go.com/Politics/wireStory/excerpts-supreme-court-majority-opinion-dissents-32054771
Excerpts
From the Supreme Court Majority Opinion, Dissents
Jun 26, 2015, 1:31 PM
ET
By The Associated Press
Excerpts from the majority opinion of
Justice Anthony Kennedy and
dissents written by Chief Justice John Roberts
and Justices Antonin
Scalia, Clarence Thomas and Samuel Alito in the Supreme
Court's 5-4
ruling Friday that declared a constitutional right to same-sex
marriage:
———
KENNEDY:
"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 endure 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, respect it 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 ask for equal dignity in the eyes of the law. The
Constitution
grants them that right."
"Far from seeking to devalue
marriage, the petitioners seek it for
themselves because of their respect —
and need — for its privileges and
responsibilities. And their immutable
nature dictates that same-sex
marriage is their only real path to this
profound commitment."
"The nature of marriage is that, through its
enduring bond, two persons
together can find other freedoms, such as
expression, intimacy and
spirituality. This is true for all persons,
whatever their sexual
orientation. 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."
"Excluding same-sex couples from marriage thus
conflicts with a central
premise of the right to marry. Without the
recognition, stability and
predictability marriage offers, their children
suffer the stigma of
knowing their families are somehow lesser. They also
suffer the
significant material costs of being raised by unmarried parents,
relegated through no fault of their own to a more difficult and
uncertain family life. The marriage laws at issue here thus harm and
humiliate the children of same-sex couples."
"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. Many who deem same-sex
marriage to be wrong reach that
conclusion based on decent and honorable
religious or philosophical
premises, and neither they nor their beliefs
are disparaged here. But when
that sincere, personal opposition becomes
enacted law and public policy, the
necessary consequence is to put the
imprimatur of the state itself on an
exclusion that soon demeans or
stigmatizes those whose own liberty is then
denied. Under the
Constitution, same-sex couples seek in marriage the same
legal treatment
as opposite-sex couples, and it would disparage their
choices and
diminish their personhood to deny them this right."
[...]
(5) Dissenting Opinion: Chief Justice Roberts refers to the
universality
of Man-Woman marriage in other cultures
Excerpts From
the Supreme Court Majority Opinion, Dissents
Jun 26, 2015, 1:31 PM
ET
By The Associated Press
ROBERTS:
"Many people will
rejoice at this decision, and I begrudge none their
celebration. But for
those who believe in a government of laws, not of
men, the majority's
approach is deeply disheartening. Supporters of
same-sex marriage have
achieved considerable success persuading their
fellow citizens — through the
democratic process — to adopt their view.
That ends today. Five lawyers have
closed the debate and enacted their
own vision of marriage as a matter of
constitutional law. Stealing this
issue from the people will for many cast a
cloud over same-sex marriage,
making a dramatic social change that much more
difficult to accept."
"The court invalidates the marriage laws of more
than half the states
and orders the transformation of a social institution
that has formed
the basis of human society for millennia, for the Kalahari
bushmen and
the Han Chinese, the Carthaginians and the Aztecs. Just who do
we think
we are?"
"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." [...]
(6) Dissenting
Opinion: Scalia calls it a "judicial Putsch"
Excerpts From the Supreme
Court Majority Opinion, Dissents
Jun 26, 2015, 1:31 PM ET
By The
Associated Press
SCALIA:
"What really astounds is the hubris
reflected in today's judicial
Putsch. The five Justices who compose today's
majority are entirely
comfortable concluding that every state violated the
Constitution for
all of the 135 years between the Fourteenth Amendment's
ratification and
Massachusetts' permitting of same-sex marriages in 2003.
They have
discovered in the Fourteenth Amendment a 'fundamental right'
overlooked
by every person alive at the time of ratification, and almost
everyone
else in the time since."
"The opinion is couched in a style
that is as pretentious as its content
is egotistic. It is one thing for
separate concurring or dissenting
opinions to contain extravagances, even
silly extravagances, of thought
and expression; it is something else for the
official opinion of the
court to do so. Of course the opinion's showy
profundities are often
profoundly incoherent."
"If, even as the price
to be paid for a fifth vote, I ever joined an
opinion for the court that
began: "The Constitution promises liberty to
all within its reach, a liberty
that includes certain specific rights
that allow persons, within a lawful
realm, to define and express their
identity," I would hide my head in a bag.
The Supreme Court of the
United States has descended from the disciplined
legal reasoning of John
Marshall and Joseph Story to the mystical aphorisms
of the fortune cookie."
"The world does not expect logic and precision in
poetry or
inspirational pop-philosophy; it demands them in the law. The
stuff
contained in today's opinion has to diminish this court's reputation
for
clear thinking and sober
analysis."
———
THOMAS:
"The majority invokes our
Constitution in the name of a 'liberty' that
the framers would not have
recognized, to the detriment of the liberty
they sought to
protect."
———
ALITO:
"Most Americans —understandably — will
cheer or lament today's decision
because of their views on the issue of
same-sex marriage. But all
Americans, whatever their thinking on that issue,
should worry about
what the majority's claim of power portends."
(7)
Roberts "wrong about marriage practices of Kalahari Bushmen, Han
Chinese,
Carthaginians, Aztecs"
http://www.washingtonpost.com/blogs/worldviews/wp/2015/06/26/justice-roberts-cited-the-traditions-of-four-cultures-in-his-dissent-on-gay-marriage-heres-what-he-didnt-mention/
Justice
Roberts cited the traditions of four cultures in his dissent on
gay
marriage. Here’s what he didn’t mention.
By Ishaan Tharoor June
26
In his written dissent to the Supreme Court's decision to effectively
legalize gay marriage in all 50 states in the United States, Chief
Justice John G. Roberts Jr. made a conspicuous gesture to the rest of
the world. He referred to the "social institution" that the majority of
the court was "transforming," and anchored its legitimacy in the
currents of history.
...the Court invalidates the marriage laws
of more than half the
States and orders the transformation of a social
institution that has
formed the basis of human society for millennia, for
the Kalahari
Bushmen and the Han Chinese, the Carthaginians and the Aztecs.
Just who
do we think we are?
It's not quite clear to WorldViews why
Roberts decided to implicate
these four particular cultures in his
opposition to the legalizing of
gay marriage. But we can suggest reasons why
they are hardly exemplars
of "traditional" unions between men and
women.
The Kalahari Bushmen
These hunter-gatherers in sub-Saharan
Africa have long been the world's
stock image of "primitive man," and
presumably that's why Roberts
referenced them -- as the stereotype of an
atavistic people, whether
it's fair or not. (It's not, but let's move on.)
The Kalahari Bushmen
don't have very strong wedding practices, and don't pay
much attention
to ceremonies around mating.
Early European accounts
of tribes and kingdoms encountered in southern
Africa included details of
warrior women styling themselves as kings
(not "queens"), polygamous
households where lesbianism was common, and
even ancient Bushmen rock
paintings depicting explicit homosexual sex.
Han Chinese
Again,
it's unclear what exactly Roberts is invoking by mentioning the
largest
ethnic group in China. Gay marriage is not legal in China, but
activists are
working to change that. A whole set of other "traditional"
wedding practices
-- including the grisly custom of "corpse brides" --
are
banned.
During the Han dynasty, the ancient lineage of kings that gives
the Han
their name, homosexuality was rife. Almost all the emperors -- you
know,
the lawgivers of the land -- of the Western Han dynasty apparently had
same-sex lovers.
The Carthaginians
For centuries, the
Carthaginians were Rome's greatest rival, and sparred
for preeminence in the
ancient Mediterranean. The great Hannibal,
general of Carthage's legions,
famously crossed the Alps with war
elephants in 218 B.C. and almost snuffed
out the world-conquering empire
before it bloomed. Sadly for him, things
went the other way.
Now, some right-wing Italian scholars of Roman
history see in Carthage
the seeds of Rome's eventual fall. Why? Well,
according to Roberto De
Mattei, formerly the deputy head of Italy's National
Research Council,
Carthage "was a paradise for homosexuals." After it was
conquered by
Rome, said De Mattei in 2011, "the abhorrent presence of a few
[Carthaginian] gays infected a good part of the [Roman] people."
De
Mattei's remarks led to a heated backlash, but one imagines Roberts
was not
that aware of the debate.
The Aztecs
Here's an excerpt from a
discussion of Aztec customary law on the Web
site of the University of Texas
at Austin. It hardly presents a
picture-perfect snapshot of conservative
family values:
Marriage was conditional in that the parties could
decide to
separate or stay together after they had their first son.
Marriages
could also be unconditional and last for an indefinite period of
time.
Polygamy and concubines were permitted, though this was more common in
noble households and marriage rites were only observed with the first,
or principal, wife. Aztec families could live in single family homes,
though many opted to live in joint family households for economic
reasons.
Then you have to factor in the whole human sacrifice thing.
Children,
meanwhile, needed to behave: "Parents were permitted to physically
punish their children, and would beat them using maguey spines or force
them to inhale chili smoke," notes UT-Austin's site.
What you need to
know about the same-sex marriage decision(0:59) The
Supreme Court ruled, 5
to 4, that same-sex marriage bans are
unconstitutional. Here's what you need
to know. (Gillian Brockell/The
Washington Post)
Ishaan Tharoor writes
about foreign affairs for The Washington Post. He
previously was a senior
editor at TIME, based first in Hong Kong and
later in New York.
(8)
On Gay Marriage, John Roberts Invokes … the Aztecs?
http://takingnote.blogs.nytimes.com/2015/06/26/on-same-sex-marriage-john-roberts-invokes-the-aztecs/
By
Lawrence Downes
June 26, 2015 1:06 pm June 26, 2015 1:06 pm
John
Roberts’s dissent in today’s same-sex marriage ruling includes an
odd
paragraph accusing the majority of blindness to truths as old as
humanity.
The misguided majority, he says, “orders the transformation of
a social
institution that has formed the basis of human society for
millennia, for
the Kalahari Bushmen and the Han Chinese, the
Carthaginians and the Aztecs.
Just who do we think we are?”
I’m sure his clerks did their research. But
it can be risky when you go
around the world, and back through the ages,
looking for societies and
cultural norms to bolster your 21st-century
conservative American point
of view.
Especially with the
Aztecs.
I’m no expert, but three minutes of online searching led me to
this
examination of Aztec law and culture by the Tarlton Law Library and the
Benson Latin American Collection at the University of Texas at Austin.
It looks pretty reliable to me.
Money quotes:
“Men got
married between the ages of 20-22, and women generally got
married at 15 to
18 years of age. Parents and relatives decided when and
who their children
would marry, and sometimes used marriage brokers.
Nobles could only marry
other nobles, and marriages were often used to
form political
alliances.
“Marriage was conditional in that the parties could
decide to
separate or stay together after they had their first son.
Marriages
could also be unconditional and last for an indefinite period of
time.
Polygamy and concubines were permitted, though this was more common in
noble households and marriage rites were only observed with the first,
or principal, wife.”
Why does this make me think of Rush Limbaugh and
Newt Gingrich? But
never mind. As Justice Roberts and his fellow dissenters
keep insisting,
we need to learn from the Aztecs, not gay couples, because
this is all
about protecting children.
“Aztec families were very
close knit. Children were considered
gifts from the gods, but were expected
to be obedient to their parents
and elders. Parents were permitted to
physically punish their children,
and would beat them using maguey spines or
force them to inhale chili
smoke.”
(9) NYT editorial: A Profound
Ruling Delivers Justice on Gay Marriage
http://www.nytimes.com/2015/06/27/opinion/a-profound-ruling-delivers-justice-on-gay-marriage.html?_r=0
A
Profound Ruling Delivers Justice on Gay Marriage
By THE EDITORIAL
BOARD
JUNE 26, 2015
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 fits comfortably within the arc
of American legal history.
As Justice Kennedy explained, the
Constitution’s power and endurance
rest in the Constitution’s ability to
evolve along with the nation’s
consciousness. In that service, the court
itself “has recognized that
new insights and societal understandings can
reveal unjustified
inequality within our most fundamental institutions that
once passed
unnoticed and unchallenged.”
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-it-happened moment.
Addressing what he
called “the transcendent importance of marriage,”
Justice Kennedy wrote that
“through its enduring bond, two persons
together can find other freedoms,
such as expression, intimacy, and
spirituality. This is true for all
persons, whatever their sexual
orientation. 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.”
Justice Kennedy’s focus on dignity and equality
has been central to his
majority opinion in each of the court’s three
earlier gay rights cases.
In 1996, the court held that states cannot deny
gays, lesbians and
bisexual people legal protection from discrimination. In
2003, it held
that states cannot ban consensual sexual relations between
people of the
same sex. And in 2013, it struck down the heart of a federal
law
defining marriage as between one man and one woman.
In Friday’s
ruling, Justice Kennedy emphasized the dignity and equality
not only of
same-sex couples, but of their families and children.
“Without the
recognition, stability, and predictability marriage
offers,” he wrote, the
children of these couples “suffer the stigma of
knowing their families are
somehow lesser.”
President Obama, who opposed same-sex marriage in his
first presidential
campaign but announced in 2012 that he had changed his
mind, said the
decision “affirms what millions of Americans already believe
in their
hearts: When all Americans are treated as equal, we are all more
free.”
And yet, in the midst of all the hard-earned jubilation
surrounding the
decision, it was difficult not to think of the people who
did not live
to see this day.
People like John Arthur, who died in
October 2013, only months after he
married his partner of more than 20
years, Jim Obergefell, on the tarmac
of Baltimore-Washington International
Airport. They lived in Cincinnati,
but Ohio would not let them marry; voters
there had passed a
constitutional ban on same-sex marriage in 2004. As Mr.
Arthur lay on a
stretcher, dying of amyotrophic lateral sclerosis, he and
Mr. Obergefell
took a private medical jet to Maryland, where same-sex
marriage is
legal. They were married in a brief ceremony and then flew
home.
When Ohio officials refused to put Mr. Obergefell’s name on his
husband’s death certificate, he sued. Last November, the United States
Court of Appeals for the Sixth Circuit ruled against him and other
couples challenging bans in Michigan, Kentucky and Tennessee. Same-sex
marriage, the court said, is a “social issue” for voters, and not the
courts, to decide. Friday’s decision reversed that ruling.
The humane
grandeur of the majority’s opinion stands out all the more
starkly in
contrast to the bitter, mocking small-mindedness of the
dissents, one each
by Chief Justice John Roberts Jr., and Justices
Clarence Thomas, Samuel
Alito Jr. and Antonin Scalia.
Faced with a simple statement of human
equality, the dissenters groped
and scratched for a way to reject
it.
The chief justice compared the ruling to some of the most notorious
decisions in the court’s history, including Dred Scott v. Sandford, the
1857 ruling holding that black people could not be American citizens and
that Congress could not outlaw slavery in the territories; and Lochner
v. New York, a 1905 case that is widely rejected today as an example of
justices imposing their own preferences in place of the law.
He
invoked the traditional understanding of marriage, which he ascribed
to,
among others, Kalahari bushmen, the Carthaginians and the Aztecs.
But
Justice Kennedy had a ready reply: “The limitation of marriage to
opposite-sex couples may long have seemed natural and just, but its
inconsistency with the central meaning of the fundamental right to marry
is now manifest.”
Justice Scalia mocked the ruling as a “judicial
Putsch” and a threat to
American democracy. “This is a naked judicial claim
to legislative —
indeed, super-legislative — power,” he wrote. “A system of
government
that makes the people subordinate to a committee of nine
unelected
lawyers does not deserve to be called a democracy.”
But
that rant is wholly wrong. In American democracy, the judicial
branch is the
great bulwark against a majority’s refusal to recognize a
minority’s
fundamental constitutional rights. As Justice Kennedy wrote,
“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.”
As gratifying as Friday’s ruling is, remember that equality won by
a
single vote.
And within minutes of the ruling, there was resistance
by some officials
around the country. Louisiana’s attorney general, James
Caldwell, said
his state, one of 13 that still bans same-sex marriage, is
not required
to issue licenses to same-sex couples because the Supreme Court
has not
yet released an explicit order. Gov. Scott Walker of Wisconsin, a
Republican presidential candidate, called for a constitutional amendment
allowing states to ban same-sex marriage.
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,
among other things, decline to
provide business services for same-sex
weddings.
Justice Kennedy said that Americans who disagree with same-sex
marriage,
for religious or other reasons, have the freedom to believe and to
speak
as they wish. “But when that sincere, personal opposition becomes
enacted law and public policy, the necessary consequence is to put the
imprimatur of the state itself on an exclusion that soon demeans or
stigmatizes those whose own liberty is then denied.”
Still, the court
did not give sexual orientation a special status, like
race or gender, which
would provide stronger protection against
discriminatory laws.
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.”
In the years since, Americans’ attitudes toward gays and
lesbians and
the right to marry have changed dramatically. Before Friday’s
ruling,
same-sex marriage was already legal in 36 states and the District of
Columbia, representing more than 70 percent of all Americans. A solid
and growing majority now believes in marriage equality; among those ages
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 to South Africa — have legalized
same-sex marriage. In May, an Irish
referendum on legalization won the
support of nearly two-thirds of
voters.
Justice Kennedy’s opinion will affect the course of American
history,
and it will change lives starting now.
A version of this
editorial appears in print on June 27, 2015, on page
A20 of the New York
edition with the headline: Marriage Equality in
America.
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