Obergefell v. Hodges, decided today, will stand in the history of jurisprudence with the likes of Brown v. Board of Education, Roe v. Wade, Gideon, Miranda and the one person/one vote decisions. The full opinion It is a decision remarkable in its own right, made even more so in having been authored by the traditional conservative Justice Anthony Kennedy. For the most part this article will allow Justice Kennedy to speak for himself, for what he says conveys its own elegance.
Let’s start by understanding the human side of what this case is about. Justice Kennedy relates three of the cases. To save space, only two are reported here. In Kennedy’s words:
Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems “hurtful for the rest of time.” App. in No. 14–556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur’s death certificate.
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Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.
The decision itself is based on the Fourteenth Amendment’s due process and equal protection guarantees. There is a lengthy discussion of the history of marriage as a fundamental right and a fundamental liberty protected by due process. The history of marriage includes many changes over the centuries. The law of coverture, marriage as a male dominated legal entity, has disappeared; laws against interracial marriage were set aside in Loving v. Virginia; arranged marriages are no longer recognized as legally enforceable. Then within this context, Kennedy makes a truly remarkable declaration, asserting the living constitution philosophy often reserved for only the most liberal of constitutional scholars. Again, in his own words.
The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.
It is difficult to overstate how radical those words seem coming from the pen of a Supreme Court Justice like Kennedy. But, his passion for bringing equality and liberty to same sex couples does end there as he chides us not to legislate one concept of morality and implores that the law cannot disparage individual choice or diminish the personhood of any. Again, from the opinion.
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
Finally, nothing can be said better than Kennedy’s own concluding remarks.
Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
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Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.