The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court's decision today in Obergefell v. Hodges is the product of decades of change propelled by the LGBT rights movement: the eradication of sodomy laws, the removal of homosexuality from the official list of mental disorders, the passage of civil rights protections, the recognition of domestic partnerships, the election of openly gay politicians, the repeal of "Don't Ask, Don't Tell," and many others. It's also the product of decades of social and legal change regarding marriage, including the elimination of sex discrimination within marriage law and the increasing ability of married couples to make conscious choices about procreation.
While same-sex marriage may feel like a new development to some people, including some excitable jurists, it's actually been in progress for more than 50 years. These underlying changes made it possible for at least five justices and the majority of Americans to think of same-sex couples as fulfilling the basic requirements of marriage-and thus deserving of the status of marriage.
There's a lot in Justice Kennedy's opinion to mull over-especially its somewhat surprising reinvigoration of fundamental rights and its accompanying near-burial of Washington v. Glucksberg. It has also helped clarify at last that Lawrence v. Texas recognized a fundamental right. I'll write more about the opinion in the coming days and weeks, I'm sure.
But for now I have a more personal observation. I was in San Francisco seven years ago on election night when Prop 8 passed, and watched as the celebration over President Obama's victory turned into sorrow and rage over the rejection of same-sex marriage by California voters. The next morning, I left the city feeling as if I'd just been punched in the gut.
Today, I'm back in San Francisco, where the mood is very different. Notwithstanding Chief Justice Roberts' gloomy forecast that the Obergefell decision "casts a cloud over same-sex marriage," I see a lot of sunny days ahead. The tumult over same-sex marriage will subside pretty quickly and the debate will move on-as it already has-to ancillary but important questions about the relationship between religious liberty and anti-discrimination law. Most of those who disagree with the decision will follow Justice Scalia's sage observation in dissent that the government's recognition of same-sex marriage is "not of special importance to me."
But it's worth pausing to reflect on what this day means for the millions of people for whom same-sex marriage is of special importance. They have long been excluded from the most basic social institution we have for sustaining relationships. "Marriage responds to the universal fear that a lonely person might call out only to find no one there," Justice Kennedy wrote.
According to the Williams Institute, there are now some 390,000 married same-sex couples in the United States. They no longer have to worry that when they travel or move to another state their families will not be legally recognized. And for those same-sex couples in places like Mississippi, Alabama, and my own home state of Texas, the greatest fear in life is not the return of Lochner v. New York. The decision means they will not have to wait another generation or more before the legislature decides to act-which might be an adequate time frame if the question were whether to reduce the corporate tax rate. Some of my friends didn't live to see this day, but they helped make it happen. They deserved better while they were living. As Justice Kennedy concluded:
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.
At long last, the campaign for same-sex marriage is over. In fact, there is no same-sex marriage. For same-sex couples as for opposite-sex couples, there is simply marriage.