Analysis: Supreme Court ruling likely to affect equal-rights laws

The U.S. Supreme Court’s sweeping decision that same-sex marriage is protected by the Fourteenth Amendment will have widespread implications, legal experts at Stanford Law School said Friday.

The decision on the Obergefell v. Hodges case — perhaps one of the most significant civil-rights rulings in the nation’s history — could affect a slew of states’ laws and policies regarding employment benefits, adoption and health care decision-making, legal scholars said. It could also portend how the court may lean for future equality cases, they said.

Stanford Law School Professor Jane Schacter, a national expert on U.S. Constitutional law and sexual-orientation law, called the 5-4 court decision definitive and categorical.

Authored by Justice Anthony Kennedy and supported by justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan, the court ruled that to deny the right to marry burdens the liberty of same-sex couples and abridges central precepts of equality.

“The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians,” Kennedy wrote.

The Supreme Court was split along two schools of thought regarding the Constitution. The “originalists” are conservatives who adhere to a strict reading of the Fourteenth Amendment as written in 1868. The liberal justices take a more evolutionary approach, viewing the Constitution as a document that has to change with society. And the drafters gave the Constitution broad principles so that it could change over time, Schacter said.

Wrote Kennedy: “History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Schacter said that position was to some degree unexpected.

“It might suggest that the court might grant more fundamental liberty rights in the future,” she said.

One landmark civil-rights case, Loving v. Virginia (1967), was cited throughout the justices’ decision. Loving overturned a ban on interracial marriage, and Schacter said it is a perfect example of how the court has adapted Constitutional law over time.

“You’d be hard pressed in 1868 to find that anyone thought of doing away with banning interracial marriage. Loving is a classic case of evolving adaptive Constitutional interpretation,” she said.

R. Richard Banks, a Stanford Law School professor and expert in anti-discrimination law, said that Constitutional law has changed dramatically in the past 10 to 15 years.

“In 2000, you could criminalize same-sex relationships,” he noted. Given the court’s same-sex-marriage ruling, “That’s an extraordinary transition in a short period of time.”

Banks said the ruling is unquestionably informed by intentions — how it’s unfair to gays and lesbians. But as in the Loving decision, the court addressed the issue of group equality as opposed to an individual’s right, although it did not formally frame it as a group-equality issue.

“But that’s what’s going on,” Banks said.

Loving was also a group-equality case, he said. While it addressed white supremacy, some might argue that denying same-sex marriage enforces the supremacy of heterosexuals, he said.

The court’s same-sex-marriage decision, while significant, is likely only the first of many regarding gay and lesbian rights, Schacter and Banks said.

“The next chapter will have to do with religious liberty and legislation on the state level to maximize the shield on religious objectors,” Schacter said. “We will see proposals to shield clerks who claim religious liberties to not grant marriage licenses to same-sex couples and bills like the one in Indiana to shield merchants who don’t want to photograph same-sex marriages on religious grounds.”

There is also a potential issue of religion-affiliated colleges not letting same-sex couples live together in campus housing, she said.

Friday’s ruling overturned a Sixth Circuit Court of Appeals decision that had reversed four lower-court rulings related to Michigan, Kentucky, Ohio and Tennessee. The lower courts originally threw out those states’ bans against same-sex marriage prior to the appeals court reversal. Fourteen same-sex couples and two men whose same-sex partners are deceased filed lawsuits, which were consolidated in the appeals case and heard by the Supreme Court justices.

The justices wrote that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. And they rejected the respondents’ argument that allowing same-sex marriage would demean a timeless institution. The petitioners, “far from seeking to devalue marriage, seek it for themselves because of their respect — and need — for its privileges and responsibilities,” the court noted.

The history of marriage, Kennedy wrote, “is also one of both continuity and change.”

“Change, such as the decline of arranged marriages and the abandonment of the law of coverture (where women were considered one entity with their husband after marriage), have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations,” Kennedy wrote.

Dissenting Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts excoriated the majority justices’ decision as attempting to hijack the legislative process to fulfill its own vision, as opposed to strictly following Constitutional law. The decision also flies in the face of millennia of history, they said.

“This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be,” Roberts wrote in his dissent.

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” he added. “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

The fundamental right to marry does not include a right to make a state change its definition of marriage, he wrote.

“And a state’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, the Constitution does not enact any one theory of marriage. The people of a state are free to expand marriage to include same-sex couples, or to retain the historic definition,” he wrote.