Gay Marriage

The 4 Principles Guiding Kennedy's Majority Opinion Supporting Gay Marriage Recognition

Personal autonomy and freedom of association not bad ideas to bring up.


Really, the explosion of stock photo choices predicted the final decision.
Credit: Dolgachov |

In today's historic Obergefell v. Hodges ruling, granting that gay couples have the same right to have their marriages recognized by the government as heterosexuals, Justice Anthony Kennedy is mindful that our media appetites have drifted in a list-based direction. In writing the majority opinion, Kennedy points to "four principles and traditions to be discussed that demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples."

Kennedy apparently resisted the urge to include a slide show or animated gifs, but does detail more about each of these four principles and show how many previous Supreme Court precedents upholding marriage rights have led to this point.

Individual autonomy. The first "tradition" discussed contains my personal favorite quote so far, which is all about the liberty and not about trying to dazzle with soaring rhetoric. "[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy." He continues, "Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. He reminds at the end of this section of the text in the Loving decision said that the right to marry or to not marry or not marry a person of another race "resides within the individual and cannot be infringed by the State."

Right to intimate association. Kennedy writes that the marriage is a fundamental right because "it supports a two-person union unlike any other in its importance to committed individuals." Kennedy is reaching toward the Griswold v. Connecticut decision here, which affirmed the right of married couples to use birth control and a decision that prisoners could not be denied the right to be married. Essentially, in a complicated fashion, Kennedy is simply saying that gay people should be able to get married because, well, they want to be married to each other: "Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other."

Safeguarding children and families. Previous court precedents have declared "[T]he right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause." Kennedy notes that many states have allowed gay couples and individuals to adopt or foster children, providing "powerful confirmation from the law itself that gay and lesbian couples can create loving, supportive families." He notes that when states refuse to recognize the marriages of gay couples, "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." But, he notes, whether or not couples decide to have children should not be a prerequisite for marriage either, because that's not the standard for heterosexual recognition.

Marriage as a foundation of American social order. Kennedy actually acknowledges what many social conservatives say about marriage, which is that it is part of the bedrock of America's social structure, even quoting Alex de Tocqueville's historical observation that "There is certainly no country in the world where the tie of marriage is so much respected as in America" and the Maynard v. Hill decision declaring that marriage is "the foundation of the family and of society." Kennedy brings all this up as a way of getting to the reality that federal and state government has tied a whole host of rights, benefits and responsibilities to marital status. He concludes that there is no difference between same-sex and opposite-sex couples in regards to this principle: "Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable. As the state itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution in the Nation's society. … 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. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our charter."

Here also he responds to defenders of bans who say that gay couples are trying to create a "new" right to same-sex marriage. He finds such an assertion inconsistent to how the Supreme Court has tackled other marriage-related rulings. Loving v. Virginia didn't identify a "new" right to interracial marriage. Rather, it ended the practice of "excluding the relevant class from the right." He determines "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."