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Emory experts weigh impact of Supreme Court marriage ruling

Same-sex marriage supporters celebrate outside the U.S. Supreme Court on June 26. Photo by Michael Patrick Key / Washington Blade

Today's landmark Supreme Court decision on same-sex marriage settles the question of marriage as a fundamental right, and also shows the importance of judicial confirmation hearings, according to Emory legal experts.

By a vote of 5-4, the nation's highest court ruled in the case of Obergefell v. Hodges that states must allow same-sex couples to marry and must recognize same-sex marriages performed in other states.

"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," Justice Anthony Kennedy wrote for the court. "They ask for equal dignity in the eyes of the law. The Constitution grants them that."

Now no question about fundamental right of marriage, Holbrook says

The reasoning of the June 26 marriage ruling is much clearer than past decisions related to same-sex couples, leaving no question about the fundamental right to marry and the progress made by the LGBT community, according to Tim Holbrook, professor of law and associate dean of faculty for Emory Law.

Holbrook has been an advocate for lesbian, gay, bisexual and transgender rights, including serving as co-counsel for former National Football League players in an amicus brief filed in 2013 as the Supreme Court weighed a challenge to California's Proposition 8, which halted same-sex marriages in the state. On June 26, 2013, the Supreme Court ruled that plaintiffs who sought to defend the state ban did not have standing to bring the case, effectively clearing the way for same-sex couples to resume marrying in California. On the same day, the Supreme Court ruled in United States v. Windsor that the federal government had to recognize same-sex marriages from states where such unions are legal, but the justices left intact a portion of the Defense of Marriage Act that allowed states to refuse to recognize same-sex marriages.

Here is Holbrook's take on the decision in the case of Obergefell v. Hodges, which went far beyond the Windsor decision by requiring states to allow same-sex couples to marry as well as recognize same-sex marriages from other states:

Marriage is a fundamental right that includes same-sex couples. So held the Supreme Court today in a 5-4 decision authored by Justice Anthony Kennedy. The outcome was expected by many. What was at issue, however, would be the reasoning. The lower courts, even those finding a constitutional right to same-sex marriage, had splintered as to the reason why such a right existed. 

Much of this splintering was the result of Kennedy's previous decisions involving the rights of gays and lesbians. In striking down anti-sodomy laws in Lawrence v. Texas, Kennedy was a bit cagey, seemingly rooting the decision in the Due Process Clause, but never being explicit. His decision in United States v. Windsor was even more confusing, mixing concerns of dignity for same-sex couples with preservation of the states' prerogatives to regulate domestic relationships, including marriage.

In this context, however, the veil has been removed: marriage is a fundamental right that must include same-sex couples under the Due Process Clause. 

While a powerful statement, it also helped the Court avoid dicier issues. For example, the Supreme Court has never determined whether sexual orientation should be treated as a "suspect class" under the Equal Protection Clause. If a government categorizes a group of people in a suspect class, such laws and regulations rarely survive scrutiny. While some of the lower courts had resolved the issue of marriage equality on this basis, the Court's decision to treat same-sex marriage as a fundamental right avoids this question for the time being.

Interestingly, all four dissenters wrote their own decisions in this case. All seemed concerned with the Court's disruption of the political process taking place, where states were debating same-sex marriage. The Court's decision undeniably disrupts that process. All of the dissenters noted future concerns with the intersection of same-sex marriage and religious freedoms and beliefs. Though Kennedy tried to assuage those concerns, the dissenters rightfully noted that conflict is likely to come down the pipeline.  

Indeed, Chief Justice John Robert's dissent, taking the role from previous decisions by Justice Antonin Scalia, laid out many of the likely next legal challenges, including the issue of whether bans on polygamy can withstand constitutional challenge. All of these issues will be impacted by the Court's decision.

Finally, and importantly, is the rhetoric of all of these opinions.  They are all respectful of gay and lesbian couples, which marks a sharp turn from the days of Bowers v. Hardwick and even Lawrence v. Texas. In this regard, the lesbian, gay, bisexual and transgender community has truly made progress.

Court's direction shows importance of past battles, says Schapiro

"Judicial confirmation battles matter.  Sometimes they matter a lot," says Emory Law Dean Robert Schapiro of the decision in Obergefell v Hodges.

Schapiro, an expert in constitutional law who clerked for Justice John Paul Stevens, says the history of past Supreme Court confirmation fights provides evidence of their lasting impact:

In 1987, after a heated confirmation fight, the Senate rejected the nomination of Robert Bork. Much of the confirmation debate focused on Bork's opposition to the Supreme Court's recognition of rights not firmly rooted in the text of the Constitution, such as the right to privacy.   Following Bork's defeat, President Ronald Reagan instead named Anthony Kennedy to the Court.

Today, the significance of that confirmation battle became clear, as Justice Kennedy relied on evolving rights, such as the right to privacy, in casting the deciding vote in favor of a right to same-sex marriage.  Robert Bork died several years ago, but it is unimaginable that Robert Bork would have written an opinion like the one authored by Justice Kennedy in this case.

With today's decision, Justice Kennedy completed his 20-year journey leading the court toward recognition of the rights of gays and lesbians. That journey began in his 1996 decision in the Romer case, and since then Justice Kennedy has written every major Supreme Court opinion on gay rights issues.

In each of those cases, Justice Antonin Scalia has penned a vituperative dissent, criticizing the Court for imposing on the entire country the values of an elite legal culture.  Today was no exception.

Chief Justice Roberts' dissent merely emphasized the general danger of court's intervening in matters that might best be left to the democratic process.  Justice Scalia took pains to point out the particular ways in which this Supreme Court is unrepresentative.

Focusing the personal characteristics of his colleagues, Justice Scalia wrote:  "Four of the nine are natives of New York City. Eight of them grew up in East- and West-Coast states. Only one hails from the vast expanse in between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count)."

One could paraphrase Justice Scalia's comments in more patently political terms:  This is a blue-state court ignoring red-state values.  Justice Scalia's reference to the religious affiliation of his colleagues continues that red-state theme:  "Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination."

Justice Scalia's dissent appears aimed to provide fodder for a counterrevolution in the culture wars.

Justice Scalia's language is unusually personal, and it is notable that only Justice Thomas joined his dissent.  The theme of all the dissenters was clear:  the court should leave same-sex marriage to be decided by legislatures.

However, that was exactly the issue on which the Bork confirmation fight turned.  In 1987, the people of the United States insisted on a court that recognizes certain fundamental rights as beyond political control.  There is no reason to believe that the public feels differently today.      

What's next? Michael Perry weighs in

The decision in Obergefell v. Hodges is also likely to set off a new round of litigation over "religious liberty," according to constitutional law expert Michael Perry.

Perry, Robert W. Woodruff Professor of Law and a senior fellow at Emory’s Center for the Study of Law and Religion, predicted last year that the Supreme Court would legalize same-sex marriage nationwide in 2015.

"The writing was on the wall, so to speak, after the Windsor decision, two years ago," he said today.

Perry anticipates that the Obergefell decision will prompt additional legal battles from those who do not want to supply services to same-sex couples.

"Predictably, there will be claims for religiously based conscientious exemptions: conscientious exemptions for those — florists, bakers, etc. — who oppose same-sex marriage on religiously based moral grounds and who therefore, as a matter of 'religious liberty,' do not want to provide services to same-sex weddings," he said.

Still, Perry does not expect the Obergefell ruling to prompt lingering backlash on the level of other controversial court decisions such as abortion.

"Unlike the issue of abortion, which remains a widely controversial issue over forty years after Roe v. Wade (1973), the issue of same-sex marriage is destined to be less and less controversial as time goes by," he said. "There is such a generational divide on the issue. Moreover, look at what Ireland — Ireland! — did two weeks ago!"

Ireland recently became the first nation in the world to legalize same-sex marriage through a national vote, as opposed to through court rulings or legislation.

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