<b><i>BREAKING NEWS:</b></i> Same-Sex Marriage Wins in Historic Supreme Court Ruling

Same-sex couples have a constitutionally protected right to marry, the U.S. Supreme Court ruled on June 26 in a history-making victory for the gay civil rights movement.

Justice Anthony Kennedy, adding to a trilogy of landmark rulings in which he has emphasized the equal rights and dignity of gay and lesbian Americans,'led a 5-4 majority'in holding that the Fourteenth Amendment's equal protection clause prohibits states from denying marriage licenses to those citizens. The ruling also requires states to recognize the same-sex marriages of other states.

Kennedy was joined by justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Dissenting were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. Each dissenter wrote opinions.

The cases from Michigan, Ohio, Kentucky and Tennessee came to the high court from the U.S. Court of Appeals for the Sixth Circuit, which, in a 2-1 decision'last November, ruled in favor'of state bans on same-sex marriage. With four other circuits ruling against such bans, the Sixth Circuit decision created the split among federal circuits that gave the Supreme Court its opening to decide the issue.

“The marriage laws enforced by the respondents are in essence unequal,” Kennedy wrote for the majority. “Same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. 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 ruling was announced on the same day that Kennedy's majority rulings in gay rights landmark cases'Lawrence v. Texas'and'United States v. Windsor'were issued in 2003 and 2013, respectively.

Rejecting the view that the political process should have been allowed to validate same-sex marriages, Kennedy also wrote, “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.”

In dissent Roberts countered, “This court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”

Scalia wrote a bitter critique of the majority. “Today's decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact'and the furthest extension one can even imagine'of the Court's claimed power to create 'liberties' that the Constitution and its Amendments neglect to mention.”

In a packed courtroom on April 28, the justices heard separate argument sessions on two questions:'the “marriage” question” whether the 14th Amendment requires states to license same-sex marriages;'and the “recognition” question” whether that amendment requires states to recognize valid same-sex marriages performed in other states. The second question would become critical only if the justices ruled against the gay couples on the first question.

By the end of the arguments, the justices appeared divided on the marriage question with Justice Anthony Kennedy likely to tip the balance.

During the arguments, Kennedy initially voiced concern about changing thousands of years of marriage tradition. Chief Justice John Roberts Jr. also challenged the gay couples' counsel, Mary Bonauto of Gay & Lesbian Advocates & Defenders, saying, “You're seeking to redefine marriage.”

But Bonauto reminded the justices that 40 years had passed since the first same-sex marriage case ' Baker v. Nelson'' had arrived at the court. And it had been two decades since the Hawaii Supreme Court indicated it was prepared to rule in favor of such marriages, she said, adding that the question “has been exhaustively aired.”

Bonauto received strong support from Solicitor General Donald Verrilli Jr. who, in his 15 minutes, urged the justices to find that the Fourteenth Amendment's equal protection guarantee required states to license these marriages. Leaving the issue to the political process, he argued, likely would result in a “house divided,” in which some states would continue to relegate gay couples to “demeaning, second-class status.”

Kennedy's initial concerns appeared to dissipate during the second half of the argument when Michigan special assistant attorney general John Bursch defended the marriage bans in his state and Kentucky.

During arguments on the second question, Ropes & Gray's Douglas Hallward-Driemeier, representing married same-sex couples in Tennessee and Ohio, argued that states had a long history of recognizing other states' valid marriages. A state had to have a “sufficiently important interest” to justify non-recognition, he added, and no such interest was present here.

His opponent, Tennessee associate solicitor general Joseph Whalen, agreed that non-recognition of out-of-state marriages was rare historically. But, he argued, “When every state had the same definition of marriage, there was a liberal policy of recognition. The difference here is the landscape we find ourselves in. Other states have redefined the status quo. Tennessee has stood pat.”

The matter arrived at the high court with dramatic speed following'the 2013 decision'in United States v. Windsor, which struck down the section of the Defense of Marriage Act that defined marriage as between a man and a woman. Since then, the number of states allowing same-sex marriages has risen to 36, plus the District of Columbia.

“What a glorious day for equality, justice and love,' said Kevin Cathcart, executive director of Lambda Legal which took a leading role in the litigation 'For the first time, LGBT people in America will live in a nation that respects their love and their families. June 26 is a day that will stand out forever as a day of victory in the history of the LGBT rights movement in America.”

Brian Brown, president of the National Organization for Marriage, which opposed same-sex marriage, attacked the decision as “lawless.” He said, “Though expected, today's decision is completely illegitimate. We reject it and so will the American people. It represents nothing but judicial activism, legislating from the bench, with a bare majority of the Justices on the Supreme Court exercising raw political power to impose their own preferences on marriage when they have no constitutional authority to do so.”

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Tony Mauro covers the U.S Supreme Court for ALM Media. Marcia Coyle writes for the National Law Journal, an ALM sibling of this newsletter.

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Same-sex couples have a constitutionally protected right to marry, the U.S. Supreme Court ruled on June 26 in a history-making victory for the gay civil rights movement.

Justice Anthony Kennedy, adding to a trilogy of landmark rulings in which he has emphasized the equal rights and dignity of gay and lesbian Americans,'led a 5-4 majority'in holding that the Fourteenth Amendment's equal protection clause prohibits states from denying marriage licenses to those citizens. The ruling also requires states to recognize the same-sex marriages of other states.

Kennedy was joined by justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Dissenting were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. Each dissenter wrote opinions.

The cases from Michigan, Ohio, Kentucky and Tennessee came to the high court from the U.S. Court of Appeals for the Sixth Circuit, which, in a 2-1 decision'last November, ruled in favor'of state bans on same-sex marriage. With four other circuits ruling against such bans, the Sixth Circuit decision created the split among federal circuits that gave the Supreme Court its opening to decide the issue.

“The marriage laws enforced by the respondents are in essence unequal,” Kennedy wrote for the majority. “Same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. 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 ruling was announced on the same day that Kennedy's majority rulings in gay rights landmark cases'Lawrence v. Texas'and'United States v. Windsor'were issued in 2003 and 2013, respectively.

Rejecting the view that the political process should have been allowed to validate same-sex marriages, Kennedy also wrote, “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.”

In dissent Roberts countered, “This court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”

Scalia wrote a bitter critique of the majority. “Today's decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact'and the furthest extension one can even imagine'of the Court's claimed power to create 'liberties' that the Constitution and its Amendments neglect to mention.”

In a packed courtroom on April 28, the justices heard separate argument sessions on two questions:'the “marriage” question” whether the 14th Amendment requires states to license same-sex marriages;'and the “recognition” question” whether that amendment requires states to recognize valid same-sex marriages performed in other states. The second question would become critical only if the justices ruled against the gay couples on the first question.

By the end of the arguments, the justices appeared divided on the marriage question with Justice Anthony Kennedy likely to tip the balance.

During the arguments, Kennedy initially voiced concern about changing thousands of years of marriage tradition. Chief Justice John Roberts Jr. also challenged the gay couples' counsel, Mary Bonauto of Gay & Lesbian Advocates & Defenders, saying, “You're seeking to redefine marriage.”

But Bonauto reminded the justices that 40 years had passed since the first same-sex marriage case ' Baker v. Nelson'' had arrived at the court. And it had been two decades since the Hawaii Supreme Court indicated it was prepared to rule in favor of such marriages, she said, adding that the question “has been exhaustively aired.”

Bonauto received strong support from Solicitor General Donald Verrilli Jr. who, in his 15 minutes, urged the justices to find that the Fourteenth Amendment's equal protection guarantee required states to license these marriages. Leaving the issue to the political process, he argued, likely would result in a “house divided,” in which some states would continue to relegate gay couples to “demeaning, second-class status.”

Kennedy's initial concerns appeared to dissipate during the second half of the argument when Michigan special assistant attorney general John Bursch defended the marriage bans in his state and Kentucky.

During arguments on the second question, Ropes & Gray's Douglas Hallward-Driemeier, representing married same-sex couples in Tennessee and Ohio, argued that states had a long history of recognizing other states' valid marriages. A state had to have a “sufficiently important interest” to justify non-recognition, he added, and no such interest was present here.

His opponent, Tennessee associate solicitor general Joseph Whalen, agreed that non-recognition of out-of-state marriages was rare historically. But, he argued, “When every state had the same definition of marriage, there was a liberal policy of recognition. The difference here is the landscape we find ourselves in. Other states have redefined the status quo. Tennessee has stood pat.”

The matter arrived at the high court with dramatic speed following'the 2013 decision'in United States v. Windsor, which struck down the section of the Defense of Marriage Act that defined marriage as between a man and a woman. Since then, the number of states allowing same-sex marriages has risen to 36, plus the District of Columbia.

“What a glorious day for equality, justice and love,' said Kevin Cathcart, executive director of Lambda Legal which took a leading role in the litigation 'For the first time, LGBT people in America will live in a nation that respects their love and their families. June 26 is a day that will stand out forever as a day of victory in the history of the LGBT rights movement in America.”

Brian Brown, president of the National Organization for Marriage, which opposed same-sex marriage, attacked the decision as “lawless.” He said, “Though expected, today's decision is completely illegitimate. We reject it and so will the American people. It represents nothing but judicial activism, legislating from the bench, with a bare majority of the Justices on the Supreme Court exercising raw political power to impose their own preferences on marriage when they have no constitutional authority to do so.”

'

Tony Mauro covers the U.S Supreme Court for ALM Media. Marcia Coyle writes for the National Law Journal, an ALM sibling of this newsletter.

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