Obergefell v. Hodges is not the most perfect victory the Supreme Court could have handed gay, lesbian and bisexual Americans. That would have been a decision applying some form of “heightened scrutiny,” a legal declaration that all laws that discriminate on the basis of sexual orientation must be treated with skepticism by the courts. Yet, while Friday’s decision is not a perfect victory for gay rights, it is still a massive one. And it likely clears the path for a follow up decision establishing that the rights of gay men, lesbians and bisexuals extend far beyond the marital context.
The single most important word in Justice Anthony Kennedy’s opinion for the Court is “immutable.” He uses this word twice, once in an off-hand statement that sexual orientation is an “immutable nature,” and again in a more pointed statement that “psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”
Kennedy’s declaration that sexual orientation is immutable has obvious political significance. It puts to bed, at least for legal purposes, what remains of the debate over whether people can choose not to be gay. But this word also carries particular significance in a case such as this one, where a discrete group of Americans allege that they are victims of discrimination. Though the Court’s cases have, at times, been murky on this point, they often refer to immutably as one of several factors that, when combined, can trigger heightened scrutiny. Kennedy’s decision to use this loaded word is a sign that he — and a majority of the Supreme Court — is willing to hold that all anti-gay discrimination by government should be treated skeptically.
Obergefell drops other hints that such a holding is coming. The primary factor in determining whether discrimination against a particular group should be subject to heightened scrutiny is whether that group has historically faced discrimination that bears “no relation to ability to perform or contribute to society.” Kennedy leaves little doubt that gay people meet this standard. “For much of the 20th century,” he writes, homosexuality was treated as an illness.” Meanwhile, “same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law.” Sex between two men or two women “remained a crime in many States,” and “[g]ays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.”
A close runner-up in the competition for the single most important word in Kennedy’s opinion is “fundamental.” Obergefell holds that marriage is a fundamental right, and that this right extends to same sex couples.
This holding is significant for two reasons. For one, it normalizes the Supreme Court’s gay rights jurisprudence. The Court’s past major gay rights decisions, all of which were written by Kennedy, often read as if they were assembled from rejected lyrics from the Age of Aquarius. They spoke loftily of principles such as “dignity,” but left the reader wondering exactly what sort of legal analysis the Court was engaged in. By rooting the Court’s decision in a fundamental rights analysis, by contrast, Kennedy uses a long-recognized, if controversial, method of deciding constitutional cases. When a right is recognized as fundamental, any law that abridges it must be treated as presumptively unconstitutional.
As Kennedy explains, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” This process “has not been reduced to any formula.” Instead, “it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”
Much of Kennedy’s explanation of why the right to marry meets this standard drips with the same kind of purple pose that Kennedy used in his past opinions. “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage,” begins one section of the Court’s opinion. “Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm,” Kennedy continues. “Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”
Yet beneath all of this florid language, it is also clear that Kennedy understands, at a very basic and personal level, the humanity that he shares with men and women who happen to be gay. The most moving portion of the Obergefell opinion isn’t Kennedy’s soaring arias about the nature of marriage, it is his simple recitation of the facts of this case.
Sergeant First Class Ijpe DeKoe and Thomas Kostura married while they lived in New York. Now, however, DeKoe serves in the army reserve in Tennessee, where “[t]heir lawful marriage is stripped from them.” DeKoe, Kennedy writes, “served this Nation to preserve the freedom the Constitution protects.” And yet Tennessee wishes to deny him that freedom.
Jim Obergefell is a gay man who met and fell in love with John Arthur more than two decades ago. Then Arthur was diagnosed with ALS, a progressive, incurable disease that robbed Arthur of his ability to move about and, eventually, of his life. Two years ago, Kennedy writes, the two men “decided to commit to one another, resolving to marry before Arthur died.” To do so, “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.”
Now, however, Ohio insists that these two men “must remain strangers even in death, a state imposed separation Obergefell deems ‘hurtful for the rest of time.'”
April DeBoer and Jayne Rowse are a married couple and the parents of three children, one of whom was “born prematurely and abandoned by his biological mother” and “required around-the-clock care.” Another is a girl with special needs. Because Michigan only permits opposite-sex married couples or single people to adopt, however, “each child can have only one woman as his or her legal parent.” Thus, Kennedy writes, “[i]f an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt.”
Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion. The men and women behind this lawsuit, Kennedy writes, seek admission into one of the most profound and most conservative institutions in our society. According to Kennedy’s opinion, “marriage is a keystone of our social order.” It is “the foundation of the family and of society, without which there would be neither civilization nor progress.” It gives “character to our whole civil polity.” And it “remains a building block of our national community.”
And when Kennedy looks at men and women such as DeKoe, Kostura, Obergefell, Arthur, DeBoer and Rowse, and he does not see people trying to disrupt the social order. He sees people who served their country, who take in children that others cast aside. He sees the life he has enjoyed with his own wife, and he understands how soul-crushing it would be if the state treated his wife as if she were a stranger to him.