In Another Historic Decision the Supreme Court Upholds Gay Marriage

Today, in yet another historic decision, the United States Supreme Court held that bans on same sex marriage are unconstitutional.  In a majority 5 to 4 decision written by Justice Kennedy, with 4 separate dissenting opinions, the Court held that state bans on gay marriage constitute discrimination.

“The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter,” Justice Anthony Kennedy wrote in his fourth major opinion in support of gay rights since 1996. It came on the anniversary of two of those earlier decisions.  “No union is more profound than marriage,” Kennedy wrote, joined by the court’s four more liberal justices.

The dissenters, led by Chief Justice John Roberts who took the unusual step of reading a summary of his dissent from the bench, accused the majority of usurping power that belongs to the states and to voters, and short-circuiting a national debate about same-sex marriage.  “This court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us,” “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Roberts said. “But do not celebrate the Constitution. It had nothing to do with it.”  Justice Antonin Scalia, increasingly isolated by time and social progress and one day after bitterly attacking his colleagues for their decision upholding the affordable care act case, wrote that he was not concerned so much about same-sex marriage as “this court’s threat to American democracy.” He termed the decision a “judicial putsch.”

It would seem for the moment that, though deeply divided, the court is for the first time in recent memory on the right side of history.