Revolutionary (and Hypocritical?) Supreme Court Makes Gay Marriage Legal

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Supporters of gay marriage rally at the U.S. Supreme Court on June 26 after it decided that the Constitution provides same-sex couples the right to marry. 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. Joshua Roberts/Reuters

The Supreme Court’s sweeping ruling on gay marriage marks a stunning expansion of gay rights and also provides more proof that the high court is one of the most revolutionary (and hypocritical?) in living memory, and continues to infuriate and hearten both left and right.

Friday’s 5-4 decision makes same-sex marriage a constitutional right that cannot be limited by any state legislature. In his majority opinion in a case involving a gay citizen suing the state of Ohio, Justice Anthony Kennedy, appointed by Ronald Reagan in 1988, declared of gay Americans, “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.”

Kennedy, a devout Catholic, has emerged as an unlikely champion of gay rights. His memorable votes include supporting a 2003 stunner decision striking down a short-lived 1986 ruling upholding state sodomy laws, and a 2013 ruling, United States v. Windsor, that declared the federal government could not deny spousal benefits to married gay couples. Two years ago, conservatives denounced Windsor as revolutionary and claimed it would lead inexorably to a right to gay marriage. Kennedy and others held then that it was a shift in keeping with precedent. It led to an explosion of rulings around the country in favor of same-sex marriage that the Supreme Court refused to hear on appeal and thus left standing. What about the remaining states that still bar same-sex marriage? On Friday, the court finally settled the matter.

The dissents from the court’s conservatives, including Chief Justice John Roberts, were blistering. Each dissenting justice wrote an opinion, with Antonin Scalia, the other Reagan appointee on the court, using his characteristically florid language. He castigated the ruling in Obergefell v. Hodges as a judicial overreach. He used the word hippie to strengthen his argument, labeled the ruling a putsch (a German word often associated with Hitler and similar to the French term coup d’état) and compared its reasoning to that found in a “fortune cookie.”

In more measured but still scathing language, Roberts compared the ruling to Roe v. Wade, the historic 1973 decision that struck down state bans on abortion. “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision,” Roberts wrote in Obergefell. “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.”

Roberts and Scalia are right. This was an activist decision. The court could have left the matter to the states to resolve. It could have issued a narrow ruling that compelled states without same-sex marriage to recognize those performed in other states. In other words, South Dakota would not have been forced to allow gay marriages but would have to recognize the marriages of Minnesotans who moved there.  

President Barack Obama, a former editor of the Harvard Law Review who taught constitutional law at the University of Chicago, recognized that this was a major decision and not a cautious, incremental one. “Progress on this journey often comes in small increments. Sometimes two steps forward, one step back, compelled by the persistent effort of dedicated citizens,” he said before placing a call to the winning plaintiff, Jim Obergefell. “And then sometimes there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.”

He went on to discuss the sweep of a ruling “that will end the patchwork system we currently have [and the] uncertainty hundreds of thousands of same-sex couples face from not knowing whether they’re marriage, legitimate in the eyes of one state, will remain if they decide to move or even visit another.”

Related: How Jim Obergefells Fight for His Dying Spouse Legalized Gay Marriage in America

It was a bold ruling, the capstone of an extraordinary political and social transformation in American life. Less than 20 years ago, civil unions granting gay couples a handful of legal rights but not marital status were rare, an oddity in small, liberal-leaning Vermont and Hawaii. Today, “civil union” is a quaint term, and 30 states and the District of Columbia allow same-sex marriage. And after today, no state may bar it. The only recourse for opponents, a constitutional amendment, could never pass.

The Supreme Court’s role in expanding gay marriage reflects the gung-ho activism of left and right that all justices decry but that all have had a hand in. That’s what makes this court revolutionary or hypocritical or both, depending on your views regarding their controversial rulings.

Since Roberts was confirmed as chief justice in 2005, the court has not only enshrined a right to same-sex marriage but also overturned a century’s worth of campaign finance laws and struck down an important section of the Voting Rights Act of 1965, one of the most venerated laws in American history and one that Congress has renewed repeatedly almost unanimously.

Liberals decried the activism of the Roberts rulings on voting rights and campaign finance—rulings in which their beloved Justice Kennedy was in the conservative majority—just as conservatives are denouncing the gay marriage ruling today. Left and right argue that the rulings they favor were logical extensions of previous holdings rather than the creation of new law out of thin air.

The activism of the Roberts court stands in stunning contrast to the chief justice’s claim during his 2005 confirmation that he wanted a humble court and saw himself as only “an umpire” calling “balls and strikes.” (His statement is reminiscent of a campaign claim by the man who appointed him, President George W. Bush. In 2000, Bush said he wanted a humble foreign policy, and then led the U.S. into two wars.) Liberals were outraged by the Citizens United ruling that lifted bans on some kinds of corporate campaign donations and helped usher in today’s super PACs, so richly on display in the 2016 presidential campaign.

They also heaped scorn on the voting rights decision, denouncing it as a court-led halt to progress for social justice and a return to a darker era in American history. The court argued it was merely asking Congress to re-calibrate the standards by which it determined which states fall under the Voting Rights Act’s emergency powers, but critics saw it, with some justification, as an emasculation of the statute’s strongest powers: the ability to make jurisdictions “preclear” any changes in voting procedures with either the Department of Justice or a panel of the circuit court in D.C.

This court has struck down fewer laws than its recent predecessors have, but that point ignores the importance of those laws that the Roberts court scrapped. Campaign finance, voting rights and marriage are central to American democracy in a way that presidential recess appointments—another ruling that changed current practice—are not.

The gay-marriage decision underscored the truth behind the quadrennial cliché that the upcoming presidential election will have a profound impact on the court and American society for many years hence. The replacement of elderly justices like Kennedy (78), Scalia (79), Ruth Bader Ginsburg (82) and Stephen Breyer (76) could easily tip the court in one direction. The court could swing left or right, depending on who is elected president in 2016, in ways that are unpredictable. But the court seems to be on an activist trajectory as long as Roberts is at the helm, and at 60 he’s likely to have his hand on the tiller for a long time.

Since the 1950s, conservatives have vowed No More Earl Warrens!, a reference to President Dwight D. Eisenhower’s 1953 appointment of a Republican California governor as chief justice. Warren shocked the right by proving to be a liberal hero on issues like school prayer and criminal rights. Conservatives and Ike himself felt betrayed by him and other justices tapped in the ’50s, including William Brennan and, to a lesser extent, Potter Stewart. Presidents Richard Nixon, Gerald Ford and George H.W. Bush appointed jurists whom conservatives thought would be reliable—Harry Blackmun (1970), author of the Roe opinion; John Paul Stevens (1975); and David Souter (1990)—and were profoundly disappointed.

That pattern continued with Kennedy’s votes on gay marriage. (Liberal presidents have faced far fewer surprises; perhaps only John F. Kennedy appointee Byron White was deemed an ideological traitor.) No doubt, Republican candidates will now vow No More Anthony Kennedys!, but they’re likely to be disappointed. No president can count on ideological purity from the men and women they appoint to the court, especially over the many years these judges sit on the bench. And the activism of the justices in Roberts’s court—whether it yields liberal rulings like gay marriage or conservative ones—seems here to stay.