News

Here's How the Same Sex Marriage Ruling Works Legally

Gay marriage is legal and has to be recognized everywhere in the US. Like, right now.

by Mike Pearl
Jun 26 2015, 4:15pm

Scalia in all his glory, via Wikimedia Commons

As you're no doubt aware, today (Friday), with a vote of 5-4, the US Supreme Court legalized same-sex marriage. The practical outcome of this decision is unusually cut-and-dried, and immediate. A few other things were weird too—among them, the sheer volume of ink and emotion dedicated to dissenting opinions.

Here's what you need to know:

Gay marriage bans are a violation of the fourteenth amendment, the ruling argues. The fourteenth amendment guarantees you the right to due process, and of course "equal protection," so in this way, same-sex marriage is now protected. This decision means the 14 states where gay marriage wasn't fully legal this morning—those are North Dakota, South Dakota, Nebraska, Texas, Missouri, Arkansas, Mississippi, Louisiana, Georgia, Tennessee, Kentucky, Ohio and Michigan—have to start giving out marriage certificates to same-sex couples, and recognizing out-of-state same-sex unions, like right now.

Nonetheless, some officials such as Texas Attorney General Ken Paxton, are still dragging their feet, telling county clerks to wait for an internal policy decision on the matter.

The actual case that formed the basis for this ruling, Obergefell vs. Hodges, is super depressing. It centers around a guy from Ohio named Jim Obergefell who married his husband John Arthur in 2013 on a plane over Maryland, right after the Supreme Court struck down DOMA, and—sadly—right before Arthur died of ALS. Obergefell then sued to have his name included on Arthur's death certificate in Ohio, where same-sex marriages still weren't recognized. So effectively, ruling that Ohio had to write down Obergefell's name as a spouse, by implication, meant that all state bans on gay marriage had to vanish. Get it?

The majority decision was written by centrist Supreme Court Justice, and arguably the most powerful man in America, Anthony Kennedy. The language is plain, but it concludes with a soul-searching, heartfelt summary of what marriage is. If you're planning to get married soon, gay or not, it'd be a good thing to read during the ceremony. I'm not kidding:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. 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.

Usually, one dissenting opinion does the trick, but in this case, weirdly, all four of the dissenting judges (Even Samuel Alito, the Millhouse of the Supreme Court) vented their opinions in separate dissents.

Antonin Scalia, who is known for sprucing up his writing with English words and phrases that haven't been used since the Polk Administration—yesterday he put "jiggery-pokery" in a decision—did not disappoint with his vehement defense of same-sex marriage bans. In addition to shoehorning in the word "o'erweening," and "mummeries," (It doesn't mean "memories of a mummy," I checked) he trashed Kennedy's opinion as "couched in a style that is as pretentious as its content is egotistic." He went on to suggest that this decision puts the whole legislative branch in jeopardy.

With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly not based on law, but on the "reasoned judgment" of a bare majority of this Court—we move one step closer to being reminded of our impotence.

As usual, the bombast kind of blurs the substance, but Scalia sounds like he might thinks this ruling will be ignored. Otherwise, it's unclear how the Supreme Court will become impotent.

Chief Justice John Roberts' opinion was less entertaining, but it was the one stapled to the majority decision. It included a section about the constitution:

Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

...and devolved into a slippery slope argument:

Although the majority randomly inserts the adjective 'two' in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.

He's not really hiding what he's saying: polygamy might be next. Maybe he's right. Who knows?

But easily the most disquieting dissent was written by Justice Clarence Thomas. He took issue with the primacy of dignity in Kennedy's opinion, and gave us a deep dive into dignity's role in civil rights struggles, and his views seem far from universal:

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

The Whitney Houston-esque idea that a government can't take away dignity is comforting. Thomas apparently imagines all the oppressed people throughout American history—the ones getting run off their land, denied rights, whipped, subjugated, beaten, separated from their families, imprisoned, starved to death, and massacred—were never once, through all of it, denied dignity by the government that was doing those things. That's touching, but counterintuitive.

Anyway, the upshot is that you have the right to go to a county clerk and get a marriage license for yourself and your same-sex partner in any jurisdiction in America now, but four Supreme Court Justices really think you shouldn't. But what they think doesn't matter any more than what they think of how you have sex.

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