Saturday, June 27, 2015

Constitutional right to gay marriage, SCOTUS rules

Supreme Court Rules Same-Sex Marriage Is A Constitutional Right - Forbes - Daniel Fisher:

June 26, 2015 - "Same-sex marriage is a fundamental constitutional right guaranteed under the 14th Amendment, the U.S. Supreme Court ruled today, in a 5-4 decision that reflected Justice Anthony Kennedy’s individualistic, libertarian views and drew angry dissents from the rest of the court’s conservatives.

"Saying 'marriage is a keystone of our social order' and 'inherent in the concept of individual autonomy,' Kennedy’s opinion in Obergefell v. Hodges makes gay marriage the law of the land in every state. In so doing, the court went past even the arguments advanced by Solicitor General Donald Verrilli and some gay-rights advocates who urged the more modest approach of merely striking down bans on gay marriage under the Equal Protection Clause of the Constitution.

"In a 34-page opinion that was matched in length by dissents by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, Kennedy acknowledged that same-sex marriage is a relatively new concept, but said basic Constitutional notions of freedom mean 'same-sex couples may exercise the right to marry'....

"Kennedy’s decision, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, is surprising in its sweep, said William Eskridge, a constitutional law expert with Yale Law School who wrote a brief supporting same-sex marriage for the libertarian Cato Institute. The decision hews to Kennedy’s reasoning in Lawrence v. Texas, a 2003 decision striking down anti-sodomy laws as an unconstitutional intrusion into the private choices of individuals.

"'It is libertarian,' Eskridge told me. 'It’s like Lawrence. It’s the freedom for Americans to make choices regarding their relationships, their childrearing decisions, and to have those choices respected by the states the same as everybody else’s'...

"The decision raises some potentially uncomfortable questions, however, including whether religious institutions will be able to maintain their contrary views toward same-sex marriage, and whether states will also be forced to recognize polygamous marriages. After all, Roberts, wrote, the leap from two-person marriage to polygamy, in historical and cultural terms, is much smaller than the leap to same-sex marriage.

'"Although the majority randomly inserts the adjective "two" in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,' Roberts wrote.

"Kennedy voiced strong support for the First Amendment protection of religious beliefs and said no one is trying to denigrate them....

"Kennedy relied on a string of cases that struck down limits on marriage as violating the 14th Amendment and the Equal Protection Clause, most importantly, Loving v. Virginia. the 1967 decision striking down laws banning interracial marriages....

"While voters and the legislators they elect have the right to dictate policy, Kennedy wrote, that doesn’t mean they can enact laws that infringe on personal liberty, or that members of an oppressed minority must wait for protection of the laws. 'The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right,' he wrote."

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