Marrying history

Years from now, the decision of the US Supreme Court recognizing the right of same-sex couples to marry will seem inevitable, history itself marching inexorably forward. It is possible, given even just a few days’ worth of hindsight, to find a pattern of legal judgments and legislative initiatives, of shifts in culture and of changes in public opinion in the United States, that suggest that the time was ripe. But when the ruling in Obergefell vs Hodges came down on Friday, the historic result was startling.

The 5-4 vote was expected, the role of Justice Anthony Kennedy as swing vote all but preordained. Even the arguments were familiar and rehearsed. The “conservative” justices associated with the Republican party framed the issue as a discussion on the power of the states to enact laws as they see fit; the “liberal” justices associated with the Democratic party, and the centrist Kennedy, who wrote the decision, understood the issue as an expansion of the American constitution’s promise of liberty.

But in its most important premises and finally in its sweeping conclusion, the decision broke new ground.

It assumed that, like any other human institution or social tradition, even marriage was in a constant state of evolution. “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.”

It also posited that, as growth in human knowledge allows a deeper understanding of the human condition, new rights may be discovered. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

It also asserted that the promise of liberty “includes certain specific rights that allow persons, within a lawful realm, to define and express their identity”—a premise that, by understanding the petition as an exercise in defining and expressing the identity of same-sex couples, and then equating identity with liberty, grants the petitioners the protection of the US constitution.

The conclusion is clear and bracing. “These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.”

It is worth noting that the strongly worded dissenting opinions did not directly address the issue of whether same-sex couples had the same right as “ordinary,” opposite-sex couples to marry when they choose to; rather, the dissents questioned the democratic propriety of “five lawyers” deciding an issue of overriding social importance all by themselves. The argument is a little rich, given that these same justices have no problem with five lawyers making a decision when the decision favors business enterprises or, as in the 2000 election, a Republican candidate for president. But on the case at hand, even Chief Justice John Roberts in his dissent acknowledged that “Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view.” True, he sees the court’s decision as putting an end to that process, but surely he is mistaken. Judges, too, have their role to play in democracy.

The closing paragraphs of the majority opinion are a moving paean to the traditional institution of marriage: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” At the same time it is a powerful summation of the argument in favor of same-sex marriage: “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.”

Last week, that plea was heard, not only in the United States, but throughout the liberty-loving world.