Saturday, July 18, 2015

Equal. At Last.

As anyone not living under a rock knows by now, the US Supreme Court declared on June 26 that gay and lesbian American citizens have a constitutional right to marriage like any other American citizen protected by the US constitution.

The ruling, hailed by all human beings of sound mind and willing to see the injustice of treating a segment of the population differently for no reasonable cause, was vituperated by the 4 justices in dissent and by those religious fanatics who love to cherry-pick what parts of their religious texts should be followed to the letter and which can be partially or fully ignored.

Justice Anthony Kennedy joined the 4 justices that make up the liberal wing of the Supreme Court and in so doing wrote the last chapter of his legacy regarding the defense and recognition of all gay and lesbian people.

From his ruling:

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. The judgment of the Court of Appeals for the Sixth Circuit is reversed.”

Read this passage again: “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.”

I cannot see any flaws in his entire logic and I want to thank Justice Kennedy for rallying once more to our defense and giving us, finally, the equality we so desired and deserved.  Thank you Sir.

From Vox:

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A few passages from Towleroad’s Ari Waldman:

The Supreme Court’s opinion guaranteeing the freedom to marry for gay persons is a Kennedy-esque take on Mary Bonauto’s brief. It vindicates almost every argument the marriage equality movement has been making for some time and squashes the grasping anti-equality rejoinders. It is a complete victory for the LGBT community, and one that reflects the jurisprudence of the man that is the undisputed leader of gay rights at the Court.

It is not a matter of gays wishing to marry other gays. It is a matter of “a liberty that includes certain specific rights that allow persons … to define and express their identity.”

As Justice Kennedy stated later in the opinion when discussing the history of marriage jurisprudence at the Supreme Court, previous cases were all about marriage, generally:

Loving [v. Virginia] did not ask about a “right to interracial marriage”; Turner [v. Safley] did not ask about a “right of inmates to marry”; and Zablocki [v. Redhail] did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.

Obergefell was just the next case in that long line of cases that recognized the importance of two persons joining together in a powerful, mutually and socially beneficial enduring union of love.

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Gay persons may not have been at the forefront of the Framers’ minds, but the Constitution that they wrote is as applicable to gays as it is to the men of 1789.

The marriage right is fundamental because the two-person marriage union is unique, essential, and “important to committed individuals.” It would be unfair to let the liberty of gay persons stop at Lawrence, which only guaranteed a gay person’s right to express himself intimately with whomever he chooses. That case decriminalized homosexuality in practice, but turned us merely from “outlaws to outcasts,” unable to enjoy the full benefits and liberties guaranteed us under the Constitution as gay persons. Those liberties ensure that we can do more than just have sex with someone of the same sex. They ensure we can marry the one we love.

In teasing out these lessons, Justice Kennedy vindicated almost every substantive argument from the marriage equality side. Marriage, he wrote, was not about children, but rather “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.” Gay persons are the same as everyone else when it comes to wanting the same fulfillment out of the institution of marriage. And, therefore, preventing gays from marrying is both a violation of a fundamental right to marry–as evident from framing the question in the case as about a “right to marry” and the many Supreme Court cases that followed–and equal protection.

Essentially, Kennedy has erected a form of heightened scrutiny without the group classifications: marriage is a fundamental right under the Due Process Clause; gays are banned from it, but gays are equal in the eyes of the law; there is no justification for discriminating against a similarly situated group on such an important, essential guarantee.

When violations of fundamental rights are at stake, individuals need not wait endlessly for votes and legislatures to deign to grant them the rights the Constitution has always guaranteed them.

Finally, a moving recap of the path to equality from Freedom To Marry:

And the White House reaction:

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