The Supreme Court’s 5-4 decision on Friday requiring states to legalize and honor marriage between persons of the same sex raises serious questions about the expanding scope of judicial powers. It also reflects a profound shift in public opinion, which now clearly favors legalizing gay marriage. However, it matters how the decision to approve gay marriage is reached, and today’s decision wrongly forecloses debate in the jurisdictions where the public is still divided on the question.
Public opinion on the issue is not monolithic; many communities still cling to the traditional view that marriage should be between persons of the opposite sex and to promote procreation and nurture of children if possible.
But the public view in favor of same-sex marriages has been gradually prevailing since Massachusetts approved them in 2004. Eleven states and the District of Columbia passed legislation authorizing same-sex unions. They are also recognized in more than 20 other countries.
But more than 20 states — including South Carolina — have had their democratically enacted bans on gay marriage overturned by lower court rulings, and 13 other states maintained a ban on gay marriage before Friday.
South Carolina’s constitutional amendment limiting marriage to the union between one man and one woman was passed in 2006 with 78 percent of the vote. A federal circuit court ruling overturned the ban in November, but Governor Nikki Haley and Attorney General Alan Wilson vowed to fight that decision. Mr. Wilson submitted an amicus brief for the Supreme Court in April defending the state’s position.
The states affected by Friday’s decision are Alabama, Arkansas, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Ohio, South Dakota, Tennessee and Texas.
Gay marriage remains controversial in other jurisdictions. The North Carolina Senate recently overrode Gov. Pat McCrory’s veto of a bill allowing magistrates to opt out of performing same-sex marriages.
Those bans and options are now unconstitutional in the majority view of the Supreme Court.
In the opinion of four justices, however, the decision wrongly foreclosed political debate on the question in states that have not yet decided to allow gay marriages.
Justice Anthony Kennedy, writing for the majority, found that the Due Process Clause of the 14th Amendment prohibited government actions that “demean” the lives of homosexuals and that therefore gay marriage is a constitutional right. Homosexuals, he said, cannot be deprived of the “constellation” of state-conferred benefits limited to marriage, “a keystone of the nation’s social order.” He was joined by Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Each of the four dissenting justices issued separate opinions, the central gist of which was summed up by Justice Scalia when he wrote, “It is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans, is a majority of the nine lawyers on the Supreme Court.”
Justice Samuel Alito, making a similar point, noted that, “Until the federal courts intervened, the American people were engaged in a debate whether their States should recognize same-sex marriage. ... Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” He added, “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”
The main dissent, by Chief Justice John Roberts, joined by Justice Scalia and Justice Clarence Thomas, declared that contrary to the majority’s view, the Constitution has no voice regarding the definition of marriage, which has traditionally been left to the individual states.
It concluded, “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision.... But do not celebrate the Constitution. It had nothing to do with it.”