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Religious Tolerance logo

In the Obergefell case, the U.S. Supreme Court legalizes
same-sex marriage (a.k.a gay marriage) across the entire U.S.

Part 33: 2015-JUNE-26:
How and why the Justices voted as they did.
Some immediate reactions to the ruling
that legalized gay marriage across the U.S.
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We use the term "gay marriage."to represent the marriage of two persons of
the same sex. We prefer "Same-sex marriage," a more inclusive term that
includes spouses with a bisexual sexual orientation, but it would make this web
site harder to find.
"LGBT" refers to lesbians, gays, bisexuals, transgender persons and transsexuals.
"LGB" refers to lesbians, gays, and bisexuals.

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This topic is continued from the previous essay

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gavelHow the nine Justices voted, and why they reached their decisions:

Justice Kennedy, wrote the opinion of the five-Justice majority of the court, to which the traditionally liberal Justices Breyer, Ginsburg, Kagan, and Sottomayor concurred.

As many constitutional experts had predicted, the four consistently conservative Justices Alito, Scalia, Roberts, and Thomas dissented. All four dissenting Justices wrote opinions of their own that upheld the constitutionality of the gay marriage bans in the four states.

There had been some speculation in advance of the ruling that Justice Roberts might have joined the majority in favor of marriage equality. This would have generated a 6 to 3 vote favoring marriage equality. During the hearing, he had commented:

"I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?" 1

If bans on gay marriage were considered to be based on sexual discrimination rather than sexual orientation discrimination, then the bans would be interpreted using a the "strict scrutiny" analysis under the 14th Amendment. This would make the bans much more likely to be found unconstitutional. However, Justice Roberts seems to have later dropped his consideration of sexual discrimination as the real criteria.

Many previous rulings showed the same split among the four liberal justices, and the four consistently conservative justices. Justice Kennedy is generally conservative and often provides a swing vote.

The Justices voted in accordance with their personal method of interpreting the U.S. Constitution:

  • The liberal Justices generally interpret the Constitution as a living document, the meaning of which evolves in response to changes in the country's culture. Compared with beliefs a century and a half ago, the vast majority of U.S. adults now reject human slavery, the superiority of men over women, and restricting the vote to men only.

    A Gallup poll in 2014 shows that 42% of adults -- a plurality -- now believe that sexual orientation is "something a person is born with" and is thus beyond their control or choice. This is an increase from 13% in 1977! That belief has a profound effect on the public's opinion of LGBT rights, including the right to marry. It is one of the main driving forces that has increased support for marriage equality to over 60% in national polls during 2015.

  • In contrast, the conservative justices take an originalist or textualist position on how the Constitution's is to be interpreted:

    • Originalism views the Constitution in terms of the beliefs and intentions of its authors at the time that it -- or its amendments -- were written. The 14th Amendment to the U.S. Constitution was written in 1869 at a time when same-gender sexual behavior was criminalized throughout the country. It is certain that the authors of that Amendment all considered marriage to be restricted only to opposite-sex couples.

    • Textualism views the documents in terms of what the words mean to a fluent user of English. What the actual intent was of the original authors is not important. The word "marriage" has generally meant the voluntary union of one women and one man throughout the entire U.S. since before 1776 until Massachusetts became the first state in the U.S. to legalize gay marriage. The one exception was the state of Utah which allowed marriages between one man and multiple women for much of the 19th century.

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poll symbolSome immediate reactions to the ruling, pro and con:

On 2015-JUN-26, the same morning as the high court's ruling:

  • Nina Totenberg, speaking on National Public Radio, said that this ruling:

    "... is probably right up there with Brown v. Board of Education, and Roe v. Wade — if you like it or hate it — and today, Obergefell v. Hodges. This was a historic moment." 2

  • An article in the Chicago Tribune's on the same morning said:

    "Gay rights supporters cheered, danced and wept outside the court after the decision, which put an exclamation point on breathtaking changes in the nation's social norms."

    "The U.S. Conference of Catholic Bishops said it was "profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a marriage."

    "[Justice] Kennedy said [that] nothing in the court's ruling would force religions to condone, much less perform, weddings to which they object."

    "The crowd in front of the courthouse at the top of Capitol Hill grew in the minutes following the ruling. The Gay Men's Chorus of Washington, D.C., sang the 'Star-Spangled Banner.' Motorists honked their horns in support as they passed by the crowd, which included a smattering of same-sex marriage opponents. ..."

    [Some] county clerks in Alabama, Georgia, Mississippi, Ohio, North Dakota, South Dakota, Tennessee, and Texas began issuing licenses to same-sex couples within hours of the decision." 3

    [Emphasis not in the original.]

    The final comment is important because, in most or all states, a same-sex couple can obtain a marriage license in one county, get married anywhere in the state, and return to their home state as a married couple, recognized as such everywhere in the country. That means that if gay marriages are to be prevented in a state, that every county in the state must refuse to issue licenses to same-sex couples.

Even if all the counties in a state did refuse to supply them with a marriage license, a same-sex couple can go to any other state, get married, return home, and have their marriage recognized.

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  • Susan Humphreys is the author of many essays donated to this web site. She wrote on the day after the High Court ruling that Justice Anthony Kennedy:

    " said that: '... all people are entitled to EQUAL DIGNITY in the eyes of the law.'

    What a beautiful way to put it.

    Those against same sex marriage are shocked, horrified, declaring doom and gloom, the sky is falling, this is a sad day for Democracy and our Constitution.

    I assert that his is a glorious day for Democracy and our Constitution. The Supreme Court has made a ruling that helps us live up to the ideals embodied in both: the ideal of equal rights and now equal dignity for all. The right to be treated with respect whatever your race, ethnicity, country of origin, immigrant status, gender, gender identification, gender orientation, religious beliefs or lack of religious beliefs, wealth, social status, political orientation.

    Those against same sex marriage declare their rights are being trampled upon. What "rights"? The right to discriminate, to be rude to, to persecute those they disapprove of, those that aren't just like them?

    If those are rights, they should be trampled upon., IF, and this is a very important IF, If we want to create that more just and peaceful society that is beneficial to all of us.

    An effort is already underway to draft a Constitutional amendment making marriage between one man and one woman. I suspect that like "Roe v. Wade" this issue will never be over. There will need to be constant vigilance to keep such a bill from being slipped into some other bill.

    One sign of Enlightenment, Spiritual or Religious advancement, Moral integrity, a Mature Soul -- use whatever term you prefer -- is the recognition that all humans are created equal and deserve to be treated with equal dignity.

    Many in our nation have come a long way, some show they still have a long way to go."

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This topic is continued in the next essay with
additional reactions to the High Court decision

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Adam Liptak, "Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage," The New York Times, 2015-APR-29, at: http://www.nytimes.com/
  2. Bill Chappell, "Supreme Court Declares Same-Sex Marriage Legal In All 50 States," National Public Radio, 2015-JUN-26, at: http://www.npr.org/
  3. "Supreme Court extends gay marriage nationwide," Chicago Tribune, 2015-JUN-26, at: http://www.chicagotribune.com/
  4. "Evangelicals respond to SCOTUS ruling for equality," Evangelical Response, 2015-JUN-26, at: http://www.evangelicalresponse.com
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How you may have arrived here:

Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-JUN-26
Latest update: 2016-MAR-17
Author: B.A. Robinson
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