The best of our history is the advance, sometimes hindered or delayed, of full rights to people and groups who have been ignored, disrespected, and even hated. Today's decision is another great milestone on that advance. I couldn't have said it more beautifully than Justice 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, exclude 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'm a justice of the peace, and if you ask me to perform your wedding you can expect to hear some of Justice Kennedy's words as part of the ceremony.
All day people have been celebrating the decision, and rightly so. I don't think I can say anything more or better about it than what has already been said.
I do want to talk, though, about the dissenters. You know their evil names: Roberts, Scalia, Thomas, and Alito. We always knew they were going to be the dissenters if it came to this. They shroud their arguments in the claim that there is something special about marriage, or there is something special and unique about the Court's interfering in state marriage laws, or there is something unusually offensive about an unelected group of lawyers who went to Harvard or Yale making important decisions for our country.
But if you think about it, a pattern begins to emerge. There haven't been that many major gay rights cases decided by the Supreme Court and justices have life tenure and tend to stick around for a long time, so we can look at these decisions and see what we can learn.
In 1986 the Court decided Bowers v. Hardwick
, a decision upholding a Georgia anti-sodomy law. None of today's dissenters were on the court, but the majority included their intellectual forebears, Rehnquist and Burger.
That decision didn't last long, because in 2003 the Court reversed it in Lawrence v. Texas
, overturning an essentially identical law. The dissenters, the guys who wanted to keep gay sex illegal? Scalia, Rehnquist, and Thomas.
” Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”
The dissenters? Scalia, Rehnquist, and Thomas.
We can move forward in time again, to United States v. Windsor exactly two years before Friday's decision, when, in another Kennedy decision, the Court held that the Defense of Marriage Act was unconstitutional. In dissent again: Roberts, Thomas, Scalia, and Alito.
And now it's back to today, and today's landmark decision. The dissenters again, in ever more extreme, emotional language: Roberts, Scalia, Thomas, and Alito.
What they demonstrate, both by their abandonment of any pretense of legal reasoning for pure vitriol, and by their consistency, is that what offends them is not any legal or jurisprudential principle, not any concern for the role of the courts or the balance between state and federal laws. No. They just can't tolerate any limitation on what can be done to gay people. Whether it's the threat of criminal prosecution in Lawrence, the unequal application of state antidiscrimination laws in Romer, or the unfair and unequal application of federal estate tax laws in Windsor, these guys are forever on guard to make sure that lesbians and gays can never be full members of society.
That's what was at issue today, and the culminating (though perhaps not final) achievement of full acceptance of our lesbian and gay friends, coworkers, and family members is as inevitable as it is sweet.
Oh yes, and one last thing: it's not “gay marriage” or “same-sex marriage” anymore. “Marriage” works just fine.