A deeply divided Supreme Court on Friday delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live.
The court’s action rewarded years of legal work by same-sex marriage advocates and marked the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence.
Marriages began Friday in states that had previously thwarted the efforts of same-sex couples to wed, while some states continued to resist what they said was a judicial order that changed the traditional definition of marriage and sent the country into uncharted territory. As of the court’s decision Friday morning, there were 14 states where same-sex couples were not allowed to marry.
Justice Anthony M. Kennedy, who has written all of the court’s decisions recognizing and expanding gay rights, said the decision was based on the fundamental right to marry and the equality that must be afforded gay Americans.
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Kennedy wrote. He was joined in the ruling by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
All four of the court’s most conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented, and each wrote a separate opinion.
The common theme in their dissents was that judicial activism on the part of five members of the court had usurped a power that belongs to the people.
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” wrote Roberts, who for the first time in his tenure marked his disagreement with a decision by reading part of his dissent from the bench.
“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,” he wrote.
Scalia called the decision a “threat to American democracy,” saying it robs citizens of “the freedom to govern themselves.”
[It’s the first time Roberts has had such a bold statement from the bench]
In a statement in the White House Rose Garden, President Obama hailed the decision: “This ruling is a victory for America. This decision affirms what millions of Americans already believe in their hearts. When all Americans are truly treated as equal, we are more free.”
It wasn’t until 2012 that Obama declared that same-sex couples should be able to marry, and it was only last year that he said he thought the Constitution provided such a right. But by Friday evening, the rainbow colors that gay rights activists have adopted were projected onto the north face of the White House. With the Supreme Court’s ruling, Obama said, “Today we can say in no uncertain terms that we have made our union a little more perfect.”
[Read the full court opinion | Read Roberts’s dissent]
There were wild scenes of celebrations on the sidewalk outside the Supreme Court. Same-sex marriage supporters had arrived early, armed with signs and rainbow flags. They cheered at the announcement of a constitutional right for gay marriage, which did not legally exist anywhere in the world until the turn of this century. The first legally recognized same-sex marriages in the United States took place just 11 years ago, the result of a Massachusetts state supreme court decision.
Jim Obergefell, who became the face of the case, Obergefell v. Hodges, when he sought to put his name on his husband’s Ohio death certificate as the surviving spouse, said, “Today’s ruling from the Supreme Court affirms what millions across the country already know to be true in our hearts: that our love is equal.”
“It is my hope that the term gay marriage will soon be a thing of the past, that from this day forward it will be, simply, marriage,” he said.
But Austin R. Nimocks, senior counsel for the Alliance Defending Freedom, a group that supports traditional marriage, said: “Today, five lawyers took away the voices of more than 300 million Americans to continue to debate the most important social institution in the history of the world. . . . Nobody has the right to say that a mom or a woman or a dad or a man is irrelevant. There are differences that should be celebrated.”
[Opponents of gay marriage are divided on whether to resist the ruling]
The Supreme Court used cases from Michigan, Ohio, Kentucky and Tennessee, where restrictions against same-sex marriage were upheld by an appeals court last year, to find that the Constitution does not allow such prohibitions.
Kennedy over the past 20 years has written the Supreme Court’s most important gay rights cases: overturning criminal laws on homosexual conduct, protecting gays from discrimination and declaring that the federal government could not refuse to recognize same-sex marriages performed where they were legal.
He often employs a lofty, writing-for-history tone, and Friday’s decision was no different.
Referring to the couples who brought the cases before the court, Kennedy wrote: “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.”
Kennedy did not respond directly to the court’s dissenters, but he addressed the argument that the court was creating a constitutional right. The right to marriage is fundamental, he said. The difference is society’s evolving view of gay people and their rights, he said.
“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest,” he wrote. “With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”
As in previous decisions, Kennedy did not spell out how courts should scrutinize laws that treated gays differently. But Mary Bonauto, who argued the case for gay plaintiffs at the Supreme Court, said that message from Kennedy’s combined opinions “is one of inclusion: Stop making rules for gay people.”
Scalia was a sharp critic of Kennedy’s style, saying it was “as pretentious as its content is egotistic.”
“The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” Scalia wrote.
Roberts wrote a lengthy dissent that was a point-by-point takedown of the majority opinion. Gay activists had wondered whether the 60-year-old justice might take note of the increasing public support for same-sex marriage and find a way to join the majority on what they called the “right side of history.”
But he and the other dissenters said the question was not whether same-sex marriage was a good idea, but who should decide.
“The court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs,” Roberts wrote. “Just who do we think we are?”
Roberts rejected a comparison to Loving v. Virginia, in which the court struck down bans on interracial marriage. That did not change the age-old definition of marriage as between a man and a woman, he said. He raised concerns that the decision could lead to polygamous marriages — he mentioned a married threesome of lesbians called a “throuple.”
He noted that voters and legislators in only 11 states had authorized same-sex marriages, and said it was better for gay marriage to be adopted through the democratic process than by judicial order. He said religious leaders could take little comfort from the majority opinion that their beliefs would be respected.
That theme was picked up by Alito in his dissent. He said there could be “bitter and lasting wounds” from the decision and warned that the decision will be “exploited by those who are determined to stamp out every vestige of dissent.”
The questions raised in the cases decided Friday were left unanswered in 2013, when the justices last confronted the issue of same-sex marriage. A slim majority of the court said at the time that a key portion of the Defense of Marriage Act — withholding the federal government’s recognition of same-sex marriages — was unconstitutional. In a separate case that year, the court said procedural issues kept it from answering the constitutional question in a case from California but allowed same-sex marriages to resume in that state.
Since then, courts across the nation — with the notable exception of the Cincinnati-based federal appeals court that left intact the restrictions in the four states at issue — have struck down a string of state prohibitions on same-sex marriage, many of them passed by voters in referendums.
Jerry Markon, David Nakamura and Sandhya Somashekhar contributed to this report.