The PJ Tatler

Justice Kennedy: Same-Sex Marriage Bans Violate Equal Protection, 'Harm and Humiliate Children'

Same-sex marriage is legal nationwide after the Supreme Court ruled 5-4 that prohibiting gay unions was similar to prohibiting interracial marriage.

“The Court has long held the right to marry is protected by the Constitution,” Justice Anthony Kennedy wrote for the opinion. “For example, Loving v. Virginia, 388 U.S. 1, 12, invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78, 95, held that prisoners could not be denied the right to marry.”

Kennedy wrote that four principles “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

“The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy… A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals,” he said.

“A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education,” and current marriage laws “harm and humiliate the children of same-sex couple.” Plus, the justice added, the right to marry is not “less meaningful for those who do not or cannot have children.”

“Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.”

Finally, Kennedy opines, “this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order… 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.”

The right of same-sex couples to marry is also enshrined in the 14th Amendment, he added, with current marriage laws causing “a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.”

“Since same-sex couples may now exercise the fundamental right to marry in all States, 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.”

Dissenting justices John Roberts, Antonin Scalia, Clarence Thomas and Sam Alito each wrote their own opinions, offering slightly different reasons for their objection.

Scalia said he wrote his own opinion, given a stamp of approval by Thomas, “to call attention to this Court’s threat to American democracy.”

“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws,” Scalia wrote. “So it is not of special importance to me what the law says about marriage.”

“It is of overwhelming importance, however, who it is that rules me. 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. The opinion in these cases is the furthest extension in fact-and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”