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Marriage a ‘fundamental right’ for all, Supreme Court rules

Same-sex marriage is a widely used term now. But in the early 1970s, there were zero states banning or allowing same-sex marriage, and no states offered civil unions or domestic partnerships.
Same-sex marriage is a widely used term now. But in the early 1970s, there were zero states banning or allowing same-sex marriage, and no states offered civil unions or domestic partnerships.

WASHINGTON — The Supreme Court said Friday same-sex couples have a constitutional right to marry, a profound and historic declaration that reflects the rapid acceptance of the practice nationally since Massachusetts became the first state to recognize gay marriage a dozen years ago.

The 5-to-4 ruling, written by Justice Anthony M. Kennedy, called marriage a "fundamental right" that all couples are entitled to, affirming equal protections for gays and lesbians under the 14th Amendment of the Constitution. The decision sweeps aside 14 state prohibitions on gay marriage and means couples will be entitled to legal marriage in all 50 states, if not immediately then within a matter of weeks.


Bans on same-sex marriage are "in essence unequal," wrote Kennedy, often the court's swing vote. "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."

The momentous ruling sparked cheers and tears of joy in front of the Supreme Court steps and prompted an immediate tweet from President Obama: "Today is a big step in our march toward equality. Gay and lesbian couples now have the right to marry, just like anyone else. #LoveWins."

Obama called the ruling a "thunderbolt.'' And the language of Kennedy's decision was designed to push gay marriage directly into the mainstream: "There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.''

Obama's own views on same-sex marriage have shifted over his presidency, and in 2012 he became the first president to announce support for such unions.

The ruling drew a mixed reaction across the South and Midwest, where voters in many states had banned same-sex unions.


Within hours, some courthouses in Mississippi, Georgia, Michigan, and Ohio began issuing marriage licenses to gay and lesbian couples, while some probate judges in Alabama shuttered their marriage license offices in protest and said they would stop performing courthouse weddings.

The majority opinion makes it clear that religious institutions, protected by the First Amendment, are under no obligation to perform same-sex marriages.

Kennedy — a nominee of President Reagan who has emerged as a champion of gay rights — was joined in the opinion by the four liberal justices: Ruth Bader Ginsburg, Sonia M. Sotomayor, Elena Kagan and Stephen G. Breyer.

Chief Justice John G. Roberts, joined by the court's conservatives, Justices Antonin Scalia, Samuel A. Alito, and Clarence Thomas, each wrote a dissent.

Roberts read his dissent from the bench, a first for the chief justice, emphasizing his deep disagreement with the majority opinion. He urged those in favor of same-sex marriage to celebrate but "do not celebrate the Constitution. It had nothing to do with it." The definition of marriage, he said, should be left up to elected state legislatures, not appointed judges.

"Whether same-sex marriage is a good idea should be of no concern to us," Roberts wrote. "Federal courts are blunt instruments when it comes to creating rights."

Scalia was characteristically harsher in his criticism, calling the decision a "threat to American democracy" because of its "naked claim to legislative — indeed, super-legislative — power.'' Thomas referred to it as "misguided musings" that threaten religious liberty and undermine the political process. Alito wrote that the ruling would be used to "vilify" Americans who disagree with same-sex marriage.


"By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas," Alito wrote.

The majority's opinion concluded a seminal phase of legal and social upheaval in America's recent history that had its roots in Massachusetts when the state's Supreme Judicial Court legalized gay marriage in 2003.

Friday's decision was particularly meaningful for Mary Bonauto, the attorney who persuaded Massachusetts' highest court to allow same-sex couples to wed and then argued for that right before the US Supreme Court in April.

"We never would have been here today without the millions of people — and a huge shout-out to Massachusetts here — who stood up for the humanity of their gay brothers and sisters and sons and daughters and talked to legislators and got out of their comfort zone to talk to their clergy and coworkers to really help change the nation," Bonauto said in an interview with the Globe after the ruling.

Bonauto has been to the Supreme Court every day it has issued opinions since mid-June in anticipation of Friday's monumental decision. When Chief Justice Roberts announced in the courtroom that Justice Kennedy would deliver the marriage opinion, Bonauto said she held her breath.

Once it became clear to those in the room that gays and lesbians would be allowed to marry, Bonauto said, she could hear those around her crying softly as they allowed the significance of the moment to sink in.


"It's a great day for our Constitution," Bonauto said. "Liberty and equality apply to all of us, including gay people. We don't tolerate laws that single out and disadvantage people because of who they are."

When the decision was announced, an exuberant crowd about two blocks long that had gathered in front of the courthouse slowly swelled up the steps onto the plaza until they were stopped by police. Some screamed with joy, waving American and rainbow flags. Other sang "We Shall Overcome," an anthem of the black civil rights movement. Someone released large red balloons into the sky that spelled out "Love."

The decision dramatically alters the civil rights landscape for gays and lesbians the way the Supreme Court did for interracial couples nearly 50 years ago.

In Hattiesburg, Miss., shortly after the ruling, Brandiilyne Dear stood atop the courthouse steps and presided over the state's first legal same-sex weddings as a crowd gathered. Dear, a pastor, leads a mostly gay and lesbian congregation, a church she started after her former church outed her as a lesbian and forced her out of its ministry.

"This is a day we've all been waiting for, the day we've been fighting for," Dear said in a phone interview from the courthouse. "I'll stay here as long as I need to marry as many people who want to be married today."


The plaintiffs in the case are reflective of the varied social milieu that will be affected by the decision. The lead plaintiff, James Obergefell, who married his longtime partner in Maryland months before he died, sued the state of Ohio for the right to be listed as the surviving spouse on his husband's death certificate.

A Michigan couple, also plaintiffs, sought to be married for the security of their young children, whom the couple were not permitted to adopt together.

The sweeping decision impacts a patchwork of state laws, where until Friday morning, 36 states recognized same-sex marriage and 14 banned such unions.

A narrower 2013 Supreme Court ruling had cleared the way for gays and lesbians to marry in California but did not legalize same-sex marriage across the country at the time. After that decision, a streak of federal court rulings across the country invalidated many state bans on same-sex marriage.

The 2013 Supreme Court ruling also struck down a key portion of the Defense of Marriage Act, a two-decade-old federal law that prohibited same-sex couples from receiving federal benefits.

Friday's ruling should take effect immediately in Michigan, Kentucky, Ohio, and Tennessee, where the plaintiffs of the case reside and whose marriage bans were upheld by a federal Appeals Court last year. But attorneys say gays and lesbians who want to marry should be able to go to any courthouse in America and apply for a license, although they may encounter some delay in obtaining one.

"Those who disagree are trying to find procedural grounds to slow down the inevitable," said Jasmine Beach-Ferrara, executive director of the Ashe-ville, N.C.-based Campaign for Southern Equality, which is working to ensure that marriage licenses will soon be issued across the South.

In addition to the four states in the case, the ruling will overturn gay-marriage bans in 10 other states: Alabama, Arkansas, Georgia, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Dakota, and Texas.

After the ruling, Obama phoned Obergefell, commending him for his leadership in "bringing about lasting change in this country." Shortly after, the president made a statement from the Rose Garden, his second in as many days hailing a Supreme Court decision.

"Progress on this journey often comes in small increments, sometimes two steps forward, one step back, propelled by the persistent effort of dedicated citizens," Obama said. "And then sometimes, there are days like this when that slow, steady effort is rewarded with justice that arrives like a thunderbolt."

Tracy Jan can be reached at Follow her on Twitter @TracyJan.