In Obergefell v. Hodges, No. 14-556, the U.S. Supreme Court held that
… the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. … and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.
The Court divided 5-4 along the expected lines and, as most watchers predicted, Justice Anthony Kennedy wrote for the majority. Much of the media hype has focused on Justice Antonin Scalia’s “get off my lawn” dissent, which happens to be an especially nasty piece of work.
There’s plenty of commentary to read. I’ve enjoyed most the dialogue at Slate’s Supreme Court Breakfast Table. “Seated” at the table are former Solicitor General Walter Dellinger, Dahlia Lithwick, Judge Richard Posner, and others. The penultimate comment, as of my finishing this post, was The Chief Justice’s Dissent is Heartless by Judge Posner. (Click on View All Entries in yellow to find it.) It’s an excellent piece of writing about Justice Kennedy’s opinion, and the dissents from the Chief Justice and Justice Samuel Alito.
Judge Posner, a very scholarly man, begins his commentary with a reference to John Stuart Mills’ book, On Liberty, and self-regarding and other-regarding acts. With a self-regarding act, you may suffer, but no one else does. Other-regarding acts, contrariwise, harm others. The judge demonstrates, repeatedly, clearly, and with stiletto-like skill—and none of the bombast offered up by his former faculty colleague, Justice Scalia—why same-sex marriage is not an other-regarding act. In his polite but direct way, he asks same-sex marriage opponents that age-old question, Why is this your business?
I also want to address those people who want government to leave marriage alone, believing Friday’s decision puts government into matters private. (I’m not a pollster but I suspect this cohort correlates highly with the group who believe government needs to leave medicine alone.) Here’s a bit of reality: You’re We’re free-riding on those who are not married. Check the tax tables. Married people pay less. And there are survivor benefits under Social Security and other pension programs. There are tax expenditures—less money coming in—and actual payments on account of people being married. To suggest that government needs to leave marriage alone is like saying “Keep your government hands off my Medicare.”
The nation will survive this affront to some, and the bellicosity we’ve heard in the 45 hours which have passed since the opinion issued will quiet down. Some are likening Obergefell v. Hodges to Roe v. Wade, and Roe opponents are actually much louder today than they were when the Court ruled 42 years ago. (Roe was a 7-2 case.) Alas, there are differences. I’ve focused on two, one big and one small.
The big difference? Young people. They simply don’t care about sexual orientation. Sure, there are places where it matters, and nothing is universal. But acceptance of the LGBT community is pervasive among those in the under-30 set, and that should make the oppositional tail short.
And the small difference? I may be wrong here, but Roe and Roe v. Wade are pronounceable, short, catchy names. Bless you, Jim Obergefell—that’s O•berg•e•fell, and just like it sounds—for filing quickly and lending your name to the cause. In a world where the medium is still the message, a hard last name helps.
P.S. For plenty more good quality writing, go to SCOTUSblog.