“Choices about marriage shape an individual’s destiny,” Justice Anthony Kennedy wrote in a powerful opinion in Obergefell v. Hodges, for a 5-4 majority, bringing marriage equality to all fifty states. The choice about marriage, it became clear this morning, was also a rendezvous with destiny for the nine members of this Court. Kennedy, joined by the Court’s four liberals, met that test with eloquence and insight into, as he wrote, “the abiding connection between marriage and liberty.” Chief Justice Roberts failed it, with a dissent notable for its pinched defensiveness and worries about polygamy. Justices Clarence Thomas, Samuel Alito, and Antonin Scalia wrote their own dissents, each characterized by the author’s particular brand of crankishness, and warnings about tyranny. Scalia spent most of his dissent attacking Kennedy’s opinion; he referred to its “mummeries and straining-to-be-memorable passages.” There was no straining, and no need for it. Kennedy’s opinion will be long remembered.
The opinion is at once profoundly legalistic and romantic. It is probably the strongest manifesto in favor of marriage—anybody’s marriage—a Court could produce. And Kennedy understood how, as he wrote, “far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” He noted Alexis de Tocqueville’s observation that Americans place a particular value on marriage, and emphasized its relation to the particular value we place on the domestic underpinnings of democracy—the household as a refuge of privacy and deliberation. (And love.) This is why his decision draws on the promise of equal protection and due process under the Fourteenth Amendment. He outlined four premises for the argument that the right to marriage ought to be—and has been, in a sizable network of Supreme Court precedents—regarded as a fundamental: first, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy”; second, “it supports a two-person union unlike any other in its importance to the committed individuals”; third, “it safeguards children and families”; fourth, “this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”
That last one suggests, correctly, that there is also something conservative, in the better sense, about Kennedy’s decision. We are past the point where gays and lesbians must effectively live in hiding. That also means, from the Kennedy perspective, that it is wrong to deny them the sort of family and community life that might be called traditional. It is not enough, he writes in the opinion, that gays and lesbians are no longer arrested for being who they are: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.” Similarly, he writes, no one says that marriage requires any couple in America to commit to having children; but
Those children deserve to walk into school and say that their parents are married, in addition to all the legal protections the fact of their parents’ marriage might bring. And there are hundreds of thousands of children in America with same-sex parents; they are more secure today than they were yesterday. It has long been clear, from Kennedy’s 2013 opinion in U.S. v. Windsor, and his questions in oral arguments, that the well-being of these children is of profound interest to him—“urgent” is a word he used this morning. Indeed, there have been times when it seems like the soundtrack to Kennedy’s thinking on marriage includes the Supremes’ "Love Child." And well it should. Without marriage equality, Kennedy writes, “Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.”
Justice Roberts hopes those people are happy now—“by all means celebrate today’s decision,” he writes. But, he says, “do not celebrate the Constitution. It had nothing to do with it.” He goes on to complain, as he has in oral arguments, that all this didn’t happen through the voting booth or in various legislatures. (In some states, of course, it has.) Kennedy disposes of this particular line of argument by writing, “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.”
But that basic truth—that the assignment of rights is not a popularity contest—seems lost on Roberts. He is more concerned with his own reputation, and that of those who voted with him. “Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate,” he writes. Roberts finds Kennedy’s use of the word “demean,” in reference to laws denying marriage equality, to be “accusatory.” (He is surpassed by Alito, who talked about efforts “to vilify Americans who are unwilling to assent to the new orthodoxy.”) What is extraordinary is that Roberts writes this with a look back at Kennedy’s generous and loving opinion, and with a blindness toward Scalia’s screeching dissent, which truly is accusatory in its insults to Kennedy and his “patrician” ilk. The opinion, he says, “is couched in a style that is as pretentious as its content is egotistic,” and somehow undoes the work of the American Revolution. Scalia then demeans that struggle by offering what he says is “a principle even more fundamental than no taxation without representation: no social transformation without representation.” This is an extremist version of Roberts’s complaints about the Court vs. the ballot, and rather extraordinarily makes one wonder if Scalia thinks that every step of progress this country has made should have been dependent on majority approbation. (“Ask a Hippie,” Scalia throws in at one juncture, bafflingly.) Gratuitously, Scalia adds, “The substance of today’s decree is not of immense personal importance to me”—suggesting that neither he nor anyone he loves will be affected by having access to same-sex marriage. He may be surprised, some day, by the love around him. For the moment, though, he is blind to it.
But a majority of the Court, and an emerging majority of the country, are not. Today’s ruling completes the work of the Windsor decision, which was followed by decisions that brought marriage to thirty-seven states, and of countless small struggles and conversations and commitments. And it is, too, an epilogue to scenes from the AIDS crisis, when partners who were legal strangers were shut out of hospital rooms. With this decision, there’s a different destiny. People like going to weddings, because they know what they mean, and for the chance to witness happiness. And five judges are enough to plan a wedding party.
It is also clear, reading Kennedy’s opinion, how much credit he gives the couples themselves for wanting to marry—and for loving each other deeply, with a sense of destiny. Referring to two sets of plaintiffs, a widower whose name was kept off his husband’s death certificate and two women who want to marry both because of their love and to better protect four special-needs children whom they are raising together, Kennedy writes, “James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon.” Marriage is critical because people can get sick or die, and because children grow up—because of what lasts and what too quickly changes.
