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Supreme Court Says Same-Sex Marriage Is a Constitutional Right

In a crushing defeat for traditionalists, the U.S. Supreme Court has mandated same-sex marriage as a constitutional right from sea to shining sea.

In a 5-4 decision the Supreme Court has held there is a 14th amendment right for people of the same sex to marry. The U.S. becomes only the second country, after Brazil, that has arrived at same-sex marriage through judicial imposition.

Obergefell v. Hodges was a consolidation of several cases brought by same-sex couples challenging the definition of marriage in Ohio, Tennessee, Michigan, and Kentucky. The court decided two questions:

  • Whether the 14th Amendment to the U.S. Constitution requires a state to license a marriage between two people of the same sex.
  • Whether the 14th Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Justice Anthony Kennedy wrote for the majority:

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality… Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

As part of his dissent, Antonin Scalia noted the political, rather than Constitutional, nature of the decision.

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. 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.

The decision is a devastating blow for proponents of man-woman marriage, who over the years have won 30 statewide races and garnered more than 50 million votes in favor of traditional marriage. Same-sex advocates had won statewide elections in only three states and won legislative battles in only a handful more.

The losing side was distraught today, charging the Supreme Court with taking away from all Americans their freedom to debate and decide marriage policy through the democratic process.

Tony Perkins of the Family Research Council said:

Five Justices on the Supreme Court have overturned the votes of 50 million Americans and demanded that the American people walk away from millennia of history and the reality of human nature. In reaching a decision so lacking in foundation in the text of the Constitution, in our history, and in our traditions, the Court has done serious damage to its own legitimacy.

Brian Brown of the National Organization for Marriage adds:

We urge the American people and future presidents to regard today’s decision just as President Abraham Lincoln regarded the Dred Scott ruling when he said in his first inaugural address that “if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

What’s next? It is hard to tell.

Proponents of abortion thought Roe v. Wade effectively ended that debate, but recent history has shown that to be abundantly false.

But the road ahead is decidedly uphill for those who support traditional marriage. Some have already called for a Constitutional Amendment to define marriage as between a man and a woman. Others have called for an incremental battle that would include federal and state protections for those who oppose same-sex marriage. This would include protection for county clerks who may resist issuing same-sex marriage licenses.

The fear now is that the federal government, under urging from the gay community, will work to stamp out any vestige of opposition or even dissent, including eliminating accreditation and tax exempt status for religious schools that do not recognize same-sex marriages.

During oral arguments before the court two months ago, the Solicitor General of the United States admitted to the court that this was a distinct possibility.

Some religious conservatives have hinted at non-violent resistance and civil disobedience, though what that means remains unclear.

One thing is clear from recent history. Though gay activists insist the issue is now settled, a Supreme Court decision rarely truly settles a question; they tend to open up new fields of debate, particularly on such controversial and divisive issues.

Tony Perkins said, “the courts will not have the final say on this profound social matter. The American people will stand up for their right to have a voice and a vote.”

Follow Austin Ruse on Twitter @austinruse

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