Demonstrators outside the U.S. Supreme Court moments before the court announced its opinion in the same-sex marriage case Obergefell v Hodges. June 26, 2015.
Demonstrators outside the U.S. Supreme Court moments before the court announced its opinion in the same-sex marriage case Obergefell v Hodges. June 26, 2015. (Photo: Diego M. Radzinschi/NLJ)

The U.S. Supreme Court’s historic decision recognizing same-sex couples’ fundamental right to marriage was a major leap, but not the final legal step in ending discrimination against lesbian, gay, bisexual and transgendered people, legal scholars and other observers said.

“This decision is very much focused on the right to marry,” said civil rights scholar David Cruz of the University of Southern California Gould School of Law. “Even its equal-protect analysis relies upon that right rather than emphasizing the history of discrimination against gay, lesbian and bisexual people.”

The high court’s decision Friday in Obergefell v. Hodges did not resolve the level of scrutiny to apply in future litigation over alleged sexual-orientation discrimination, he said. The court has generally applied one of three tiers of scrutiny to the constitutionality of government actions challenged as discriminatory: strict scrutiny (its most searching review); intermediate or heightened scrutiny; and rational-basis scrutiny (its most relaxed review).

But the court’s decision “does emphasize the ‘common humanity’ of LGBT persons, and it states that a person’s sex orientation is immutable—which, of course, has been one of the factors that the Supreme Court’s precedents look at in deciding whether heightened scrutiny is appropriate,” Cruz said.

So although the decision offers support for the argument that sexual orientation discrimination should be treated as “suspect” under the equal-protection clause, Cruz and others agreed, that question will have to be litigated.

There already are cases in the lower courts in which business owners, citing religious beliefs, face discrimination charges for refusing to provide gays and lesbians with marriage-related services.

Christopher Wright, a former high court clerk and head of the appellate group at Harris, Wiltshire & Grannis, said, “The court’s failure to specify the appropriate level of scrutiny, together with its discussion of religious freedom, probably means the clergy who oppose same-sex marriage will not be required to perform same-sex marriages. And the result in other cases—whether, for example, bakers will have to make wedding cakes for same-sex couples—is not clear under today’s opinion.”

The movement still has much to do, said Jon Davidson, legal director of Lambda Legal.

“There may be resistance by some to complying with today’s ruling, but it will be short-lived,” he said. “There will, however, continue to be attempts to justify the imposition of unequal treatment on others based on religious motivations that we must fight against. We also will continue to fight for all of the other aspects of equality and justice for LGBT people, including the rights of transgender people, people living with HIV, LGBT youth, seniors and immigrants; employment rights; rights to be free from violence; and police misconduct.”

A landmark ruling

In front of a packed courtroom, Justice Anthony Kennedy led the 5-4 majority in holding that the 14th Amendment’s due-process and equal-protection guarantees require states to license marriages between same-sex couples and to recognize those marriages when lawfully performed out of state.

Although marriage between a man and a woman has been the rule for millennia, he wrote, “The past alone does not rule the present.” The nation’s understandings of marriage have changed as new generations recognized “new dimensions of freedom,” he said.

That changing dynamic, he wrote, can be seen in the nation’s experiences with gay and lesbian rights. After describing the history of treatment of gays and lesbians and the court’s own precedents in this area, three of which were written by Kennedy himself, the justice moved to the constitutional questions raised by the same-sex marriage cases.

He found in the court’s decisions on interracial marriage (Loving v. Virginia), privacy and contraception (Griswold v. Connecticut) and other cases “essential attributes of the right to marry” that, he said, “compels the conclusion that same-sex couples may exercise the right to marry.”

First, the right to personal choice regarding marriage is inherent in the concept of personal autonomy. “Like choices concerning contraception, family relationships, procreation and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make,” Kennedy wrote.

Second, “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” As the court held in Lawrence v. Texas, striking down state sodomy bans, Kennedy said, “same-sex couples have the same right as opposite-sex couples to enjoy intimate association.”

Third, the right to marry safeguards children and families. “As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples,” he wrote.

“Fourth and finally, this court’s cases and the nation’s traditions make clear that marriage is a keystone of our social order,” he wrote. “There is no difference between same- and opposite-sex couples with respect to this principle.”

Kennedy rejected the dissenters’ argument that the majority was creating a new right to same-sex marriage—one the 14th Amendment’s framers would never have recognized. He said that originalist approach is not the one the court has taken in the past when examining other fundamental rights, including to marriage and intimacy.

“Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right,” he wrote. “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

“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. “

Chief Justice John Roberts Jr., joined by Justice Antonin Scalia, dissented. Although the policy arguments for extending marriage to same-sex couples may be compelling, Roberts wrote, “the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a state change its definition of marriage.”

He said any such change should come through the democratic process, not the courts. “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,” he said.

Scalia also wrote a dissent, which Justice Clarence Thomas joined.

“Today’s decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” Scalia wrote. “The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the court’s claimed power to create ‘liberties’ that the Constitution and its amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the people of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

Thomas and Justice Samuel Alito Jr. wrote separate dissents.

Prior to the high court’s ruling, same-sex marriage was legal in 37 states and the District of Columbia.

The high court cases were from Michigan, Ohio, Kentucky and Tennessee and arrived after the U.S. Court of Appeals for the Sixth Circuit, in a 2-1 decision last November, ruled in favor of those state bans on same-sex marriage. With four other circuits ruling against such bans, the Sixth Circuit decision created the split among federal circuits that gave the Supreme Court its opening to decide the issue.