For once I can legitimately blame Anthony Kennedy for my problems. I mean, I sort of always could, because I had Judge Bork as a professor in law school, and I wouldn’t have had to endure his weird lectures on the right to engage in necrophilia (which came in handy today, weirdly) as being part of the “penumbras and emanations” of the Bill of Rights that ultimately created the “right to privacy,” and his penchant for carrying around fried foods in his suit pocket (true story). But today, Anthony Kennedy has made a generation of lawyers just feel really, really tired.
Writing for the majority, Kennedy ruled, with the Supreme Court, that state bans on gay marriage are unconstitutional, striking down, specifically, statutes in Michigan, Ohio, and Indiana, within the Sixth Circuit. States don’t have to be in the marriage business, he said, but where they are, they can’t discriminate.
In a landmark opinion, a divided Supreme Court ruled Friday that states cannot ban same-sex marriage, establishing a new civil right and handing gay rights advocates a victory that until very recently would have seemed unthinkable.
The 5-4 ruling had Justice Anthony Kennedy writing for the majority with the four liberal justices. Each of the four conservative justices wrote their own dissent.
The far-reaching decision settles one of the major civil rights fights of this era — one that has rapidly evolved in the minds of the American public and its leaders, including President Barack Obama. He struggled with the issue and ultimately embraced same-sex marriage in the months before his 2012 re-election.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” Kennedy wrote. “In forming a marital union, two people become something greater than they once were.”
Forever the cynic, I have to say that I’m oddly confused by the ruling. It’s not that it was unexpected, or that I, for one, was not among those who wanted the state out of the marriage business altogether, but “the state” also means “the Supreme Court,” and like yesterday’s ruling on Obamacare, this ruling is suspiciously legislative. Marriage might be about love to Anthony Kennedy, but at its heart, marriage is a contract, albeit a very special contract. Flowerly language and tear-jerker passages aren’t really legal rulings. They’re window-dressing. Since Kennedy isn’t very clear on exactly how the ruling will go into practice, other than wiping “defense of marriage” acts off the books in key states, this seems more like the start of litigation than the end.
Scalia’s dissent, as his dissent yesterday, is a masterwork, which should be parsed out and printed in bits on a Cards of Humanity expansion pack. Bill Clinton’s response on Twitter is so bizarrely tone-deaf it’s hard to bear. And this weekend’s pride parade in Chicago will be nothing short of epic. But this ruling will be the subject of hundreds of classes and law review submissions for years to come as we figure out exactly what Kennedy was doing when he failed to use any heightened scrutiny standard or a specific reference to Full Faith and Credit. In a decision that was supposed to be heavily centered on the Constitution — and which could have had plenty of justification within — he, as Justice Roberts pointed out in his concurrence to Scalia’s dissent, remarkably lax in actually citing the Constitution.
Robert Bork would have told him to go sit in a corner and think about what he did. And get him a doughnut. With sprinkles.
Until then, of course, gay couples now enjoy the same rights as straight couples to settle down, buy a minivan, start drinking boxed wine from the fridge and become extremely boring to all of their friends. Attempts to dissolve traditional marriage have instead given way to a welcome to everyone to enjoy the benefits of not having to shave your legs every day and having someone else there to help you select the correct dishwasher for your kitchen’s aesthetic. And that, I suppose, is the true heart of marriage equality.