Equal Dignity in the Eyes of the Law

In a landmark decision, the Supreme Court of the United States has affirmed that the right to marry is “a fundamental right inherent in the liberty of the person,” and that “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.” Obergefell v. Hodges, No. 14-556, slip op. at 22 (U.S. June 26, 2015) (majority opinion), available at http://1.usa.gov/1ON2rxf. The Court, in a 5-4 decision, held that “same-sex couples may exercise the fundamental right to marry in all States” and that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State” merely because the marriage is between members of the same sex. Id. at 28.

At issue in the consolidated cases before the Court were laws from four states ' Kentucky, Michigan, Ohio and Tennessee ' that prohibited same-sex marriage and denied recognition of same-sex marriages legally performed in other states. The Obergefell decision struck down not only those laws, but all state laws that denied same-sex couples the right to get and stay married. Twelve years after the first state legalized marriage between members of the same sex (see Goodridge v. Dep't of Pub. Health, 440 Mass. 309 (2003)), marriage equality thus became the law of the land.

The ruling in Obergefell was handed down on the second anniversary of the Court's decision in United States v. Windsor, 133 S. Ct. 2675 (2013). In Windsor, the Court had invalidated a provision of the Defene of Marriage Act (DOMA) that defined marriage as the union of a man and a woman for purposes of federal law. The Court ruled that DOMA, by its restrictive definition of marriage, sought to ' and did ' injure same-sex spouses, legally married under state law, by denying them the array of federal benefits enjoyed by heterosexual married couples. As in Windsor, the majority opinion in Obergefell was written by Justice Anthony Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. And as in Windsor, the Court's most conservative Justices, including Chief Justice Roberts and Justices Scalia, Thomas and Alito, dissented in Obergefell.

The Majority Opinion

Justice Kennedy opened his opinion for the Court with a sweeping message appropriate for the landmark nature of the decision and the significance of the issue being decided: “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.” Obergefell, slip op. at 1-2. He then prefaced his legal analysis with a history of marriage in our society, including the evolution of marriage from a male-dominated relationship to a more egalitarian partnership “[a]s women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity ' .” Id. at 6. Justice Kennedy also outlined the evolution of societal thinking about same-sex intimacy, from its treatment as immoral, even criminal behavior, to the modern recognition by psychiatrists and others that “sexual orientation is both a normal expression of human sexuality and immutable.” Id. at 7-8. He discussed societal developments in the late 20th century that led to homosexual relationships becoming more open, as well as shifts in public attitudes that led to more tolerance of such relationships. And he discussed the history of the Court's jurisprudence regarding the rights of homosexuals, from Bowers v. Hardwick, 478 U.S. 186 (1986) (where the Court upheld a Georgia law criminalizing certain homosexual acts), to Lawrence v. Texas,' 539 U.S. 558, 575 (2003) (holding that laws criminalizing same-sex intimacy “demea[n] the lives of homosexual persons”). It was against that background, he noted, that the issue of same-sex marriage emerged in the courts.

Justice Kennedy's legal analysis of the issues before the Court began with a discussion of the Due Process clause and the fundamental liberties protected under it. Among these liberties, he noted, were “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Obergefell, slip op. at 10 (citations omitted). He was obviously mindful of the argument propounded by the respondents ' and by the dissenters ' that the decision on whether same-sex couples may marry should be left to the democratic process in each state when he wrote that
“[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Id. Justice Kennedy was also mindful that in Supreme Court precedents describing the right to marry ' and determining that it is a fundamental right under the Due Process clause ' there was a presumption that the marriage at issue was a relationship between members of the opposite sex. Id. at 11. So, to “assess[] whether the force and rationale of [those] cases apply to same-sex couples,” he set forth an analysis of the reasons why the right to marry was determined in prior cases to be a “fundamental right” protected under the Constitution. Id. at 12.

Justice Kennedy identified four “principles and traditions” which, he concluded, demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples:

1. The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
2. The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.
3. Marriage safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
4. Marriage is a keystone of social order.

Id.' at 12-18.

Applying those principles, the Court concluded that a state's denial to same-sex couples of the right to marry “has the effect of teaching that gays and lesbians are unequal in important respects” and that “[i]t demeans gays and lesbians for [a] State to lock them out of a central institution of the Nation's society.” Id. at 17. The Court found that, no matter how “natural and just” it may have seemed in the past, it is now manifest that limiting the right to marry to opposite-sex couples is inconsistent with “the central meaning of the fundamental right to marry ' .” Id. And that, the Court added, leads to recognition that “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” Id. at 18.

The Court's analysis then turned to the Equal Protection clause, with the majority declaring that the right of same-sex couples to marry is not only part of the liberty promised by the Fourteenth Amendment as a matter of due process, but is “derived, too, from that Amendment's guarantee of equal protection of the laws.” Id. at 19. Discussing the interrelationship of the Due Process and Equal Protection clauses in the identification and definition of a right, the Court noted that its “cases touching upon the right to marry reflect this dynamic.” Id. at 19-21 (citing, e.g., Loving v. Virginia, 388 U.S. 1 (1967), and Zablocki v. Redhail, 434 U.S. 374 (1978)). The Court analyzed a series of cases reflecting what it called the synergy between due process and equal protection, concluding that

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.

Obergefell, slip op. at 22 (citations omitted).

The Court also addressed the argument that the decision regarding who may marry should be left to the democratic process in each state by pointing out that, under our constitutional system, individuals need not await legislative action to assert a fundamental right. To drive that point home, the Court cited precedents old and new. Quoting a decision from its last Term, the Court noted that, “when the rights of persons are violated, 'the Constitution requires redress by the courts,' notwithstanding the more general value of democratic decision[-]making.” Id. at 24 (quoting Schuette v. BAMN, 572 U.S. ___ (2014), slip op. at 17). It also harkened to a decades-old decision considered one of the Court's most sweeping statements about the fundamental freedoms established by the Bill of Rights, in order to underscore the idea that “[a]n individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” Obergefell, slip op. at 24. As the Court stated:

The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” ' This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

Id. (quoting West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943)).

The majority opinion ended on the note that it was petitioners' hope not to be excluded from marriage, “one of civilization's oldest institutions.” Indeed, the Court went on, petitioners “ask for equal dignity in the eyes of the law” and “[t]he Constitution grants them that right.” Obergefell, slip op. at 28.

The Dissents

Each of the four dissenters was moved to write a separate opinion. All of them in one way or another accused the majority of overreaching the Court's authority in declaring that same-sex marriage was a right protected under the Constitution. The Chief Justice, for instance, declared that the right of same-sex couples to marry announced by the majority “has no basis in the Constitution or this Court's precedent.” Id., slip op. at 3 (Roberts, C.J., dissenting). Asserting that the Court was transforming marriage, “a social institution that has formed the basis of human society for millennia,” the Chief Justice then asked: “Just who do we think we are?” Id.

Justice Scalia was, to put it mildly, even less nuanced in his criticism of the five Justices who made up the majority, citing what he called “the hubris reflected in today's judicial Putsch.” Id., slip op. at 6 (Scalia, J., dissenting). Not content with denigrating the legal analysis of the majority opinion (“lacking even a thin veneer of law”), Justice Scalia repeatedly belittled the writing style of the opinion's author. For instance, he described the majority opinion as containing “mummeries and straining-to-be-memorable passages” and “showy profundities [that] are often profoundly incoherent.” Id., slip op. at 4, 7-8 (Scalia, J., dissenting). And Justice Scalia stated that he would “hide [his] head in a bag” if he were ever to join in an opinion that began as Justice Kennedy began the majority opinion in this case. Id. at 7-8 n. 22 (Scalia, J., dissenting). Then, in a case of the proverbial pot calling the kettle black, immediately following that crude potshot at his colleague's writing, Justice Scalia decried how the Court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story”! Id.' at 8 n. 22 (Scalia, J., dissenting). As Justice Scalia so pithily stated on the same page of his opinion, “Huh?” Perhaps the senior Associate Justice need look no further than his own vitriolic, insult-laden dissents for examples of the Court's descent from disciplined legal reasoning.

Justice Thomas's criticism in dissent did not rely on ad hominem comments but was no less vehement, accusing the majority of “undermining the political processes that protect our liberty” and “threaten[ing] the religious liberty our Nation has long sought to protect.” Id., slip op. at 14 (Thomas, J., dissenting). His primary focus was on what he considers “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” Id. at 2 (Thomas, J., dissenting). He also viewed petitioners' notion of “liberty” to be wrongheaded because, he said, they did not really seek liberty in the constitutional sense ' which he defined as “freedom from governmental action” ' but sought entitlement to governmental benefits, which is not a constitutional right. Id. at 13 (Thomas, J., dissenting). And Justice Thomas asserted that the majority's decision, by taking the issue of same-sex marriage out of the political process, would have “potentially ruinous consequences for religious liberty” in light of what he called the “all but inevitable” conflict that would arise when “individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.” Id. at 16, 15 (Thomas, J., dissenting).

Justice Alito was also definite in his criticism of what he saw as the overreaching of the majority, warning that the Court's decision “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” Similarly, he declared that the decision “shows that decades of attempts to restrain this Court's abuse of its authority have failed.” Id., slip op. at 6, 7 (Alito, J., dissenting). And just as Justice Thomas had warned of “ruinous consequences” as a result of the majority's decision, Justice Alito concluded his opinion with ominous warnings of his own, finding that the majority's view of liberty, however sincere, “evidences ' the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation” and warning that “all Americans ' should worry about what the majority's claim of power portends.” Id. at 8 (Alito, J., dissenting).

What Now?

In the wake of the Court's decision in Obergefell , reactions were predictable. Same-sex couples and pro-marriage equality advocacy groups celebrated; opponents echoed the sort of dire predictions made by the dissenters on the Court. In the days that followed, officials in some states made noises about defying the decision, including county clerks who refused to issue marriage licenses to same-sex couples (or to anyone!) rather than follow the high Court ruling.

President Obama hailed the decision as “a victory for America”; not surprisingly, politicians campaigning to succeed him also weighed in. Hillary Clinton, the leading Democrat seeking her party's presidential nomination in 2016, called the decision a “historic victory” for marriage equality. Candidates seeking the 2016 Republican presidential nomination expressed their disagreement with the decision in one form or another, ranging from outrage to begrudging acceptance of the Court's ruling. On one extreme, former Arkansas governor Mike Huckabee advocated acts of civil disobedience in response to the decision, urging state officials to ignore it. Other Republican hopefuls, like New Jersey Governor Chris Christie and U.S. Senator Lindsey Graham of South Carolina, were more measured in their responses, saying that they would respect the decision even while they disagreed with it.

The full impact of the Court's Obergefell decision will not be known for some time. It remains to be seen whether the Court simply sped up an inevitable nationwide procession toward marital equality or, as the dissenters have suggested, stifled democratic debate by “judicially imposing” marriage equality, making it more difficult for some to accept gay marriage.

What we do know is that, prior to the Court's decision, same-sex marriage had been legalized in nearly three-fourths of the states plus the District of Columbia and Guam. We also know from a February 2015 poll by CNN/ORC that 63% of Americans believe that same-sex couples have a constitutional right to marry. And given the experience of states where same-sex marriage has been legal, dire predictions of doom for the Constitution, society and the institution of marriage appear to be overblown, even as similar predictions were unrealized in the wake of other seminal Court decisions on marriage, like Loving v. Virginia, 388 U.S. 1 (1967), which struck down laws prohibiting interracial marriage.

It is also clear that, except in the unlikely event that some future Supreme Court panel takes up the issue again and overrules Obergefell, the right of same-sex couples to marry is the law throughout the United States. There are opponents of same-sex marriage, of course, who ' not unlike the dissenters in Obergefell ' have strong, visceral feelings about what the Court decided. Some opponents can be dismissed as merely bigoted, and others dismissed for their refusal to acknowledge the difference between religious rites and civil rights. But other opponents have profound, heartfelt concerns about possible infringements on religious liberty, and those concerns must be addressed and allayed.

To be sure, guaranteeing the fundamental right to marry to same-sex couples and opposite-sex couples alike, while preserving the liberty of religious institutions for whom marriage is the union of a man and a woman, is a challenge. But it is a challenge that can be met. It is, in fact, a challenge that has been taken up and met in states like New York, where marriage equality was achieved through legislation. The 2011 New York law legalizing same-sex marriage was passed only after specific provisions were hammered out to ensure the independence of religious institutions and clergy ' including freedom from suit or governmental penalty ' if they chose not to solemnize, perform or otherwise accommodate a same-sex marriage. Other states, including Minnesota, have included similar religious exceptions in their legislation legalizing same-sex marriage. See, e.g., N.Y. Dom. Rel. Law ' 10-b (McKinney 2014); Minn. Stat. ' 517.09(3) (2014).

Religious exceptions of the kind written into law in states like New York and Minnesota can and should be enacted into law in states where same-sex marriage had not been allowed prior to Obergefell. They are the best way to maintain the same separation of church and state that has been so important to the pro-marriage equality movement in achieving recognition of same-sex couples' right to marry. Indeed, one can only hope that calls for disrespect and even defiance of the Supreme Court's decision will be ignored and that the energies of people of good will on both sides of the issue will be spent on finding ways to protect the liberties of those whose religious beliefs forbid same-sex marriage while recognizing the civil rights of same-sex couples that have been so long denied them.

Frank Gulino, Of Counsel to Silver & Kelmachter, LLP, in New York City, is a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers.

In a landmark decision, the Supreme Court of the United States has affirmed that the right to marry is “a fundamental right inherent in the liberty of the person,” and that “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.” Obergefell v. Hodges, No. 14-556, slip op. at 22 (U.S. June 26, 2015) (majority opinion), available at http://1.usa.gov/1ON2rxf. The Court, in a 5-4 decision, held that “same-sex couples may exercise the fundamental right to marry in all States” and that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State” merely because the marriage is between members of the same sex. Id. at 28.

At issue in the consolidated cases before the Court were laws from four states ' Kentucky, Michigan, Ohio and Tennessee ' that prohibited same-sex marriage and denied recognition of same-sex marriages legally performed in other states. The Obergefell decision struck down not only those laws, but all state laws that denied same-sex couples the right to get and stay married. Twelve years after the first state legalized marriage between members of the same sex ( see Goodridge v. Dep't of Pub. Health , 440 Mass. 309 (2003)), marriage equality thus became the law of the land.

The ruling in Obergefell was handed down on the second anniversary of the Court's decision in United States v. Windsor , 133 S. Ct. 2675 (2013). In Windsor, the Court had invalidated a provision of the Defene of Marriage Act (DOMA) that defined marriage as the union of a man and a woman for purposes of federal law. The Court ruled that DOMA, by its restrictive definition of marriage, sought to ' and did ' injure same-sex spouses, legally married under state law, by denying them the array of federal benefits enjoyed by heterosexual married couples. As in Windsor, the majority opinion in Obergefell was written by Justice Anthony Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. And as in Windsor, the Court's most conservative Justices, including Chief Justice Roberts and Justices Scalia, Thomas and Alito, dissented in Obergefell.

The Majority Opinion

Justice Kennedy opened his opinion for the Court with a sweeping message appropriate for the landmark nature of the decision and the significance of the issue being decided: “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.” Obergefell, slip op. at 1-2. He then prefaced his legal analysis with a history of marriage in our society, including the evolution of marriage from a male-dominated relationship to a more egalitarian partnership “[a]s women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity ' .” Id. at 6. Justice Kennedy also outlined the evolution of societal thinking about same-sex intimacy, from its treatment as immoral, even criminal behavior, to the modern recognition by psychiatrists and others that “sexual orientation is both a normal expression of human sexuality and immutable.” Id. at 7-8. He discussed societal developments in the late 20th century that led to homosexual relationships becoming more open, as well as shifts in public attitudes that led to more tolerance of such relationships. And he discussed the history of the Court's jurisprudence regarding the rights of homosexuals, from Bowers v. Hardwick , 478 U.S. 186 (1986) (where the Court upheld a Georgia law criminalizing certain homosexual acts), to Lawrence v. Texas,' 539 U.S. 558, 575 (2003) (holding that laws criminalizing same-sex intimacy “demea[n] the lives of homosexual persons”). It was against that background, he noted, that the issue of same-sex marriage emerged in the courts.

Justice Kennedy's legal analysis of the issues before the Court began with a discussion of the Due Process clause and the fundamental liberties protected under it. Among these liberties, he noted, were “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Obergefell, slip op. at 10 (citations omitted). He was obviously mindful of the argument propounded by the respondents ' and by the dissenters ' that the decision on whether same-sex couples may marry should be left to the democratic process in each state when he wrote that
“[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Id. Justice Kennedy was also mindful that in Supreme Court precedents describing the right to marry ' and determining that it is a fundamental right under the Due Process clause ' there was a presumption that the marriage at issue was a relationship between members of the opposite sex. Id. at 11. So, to “assess[] whether the force and rationale of [those] cases apply to same-sex couples,” he set forth an analysis of the reasons why the right to marry was determined in prior cases to be a “fundamental right” protected under the Constitution. Id. at 12.

Justice Kennedy identified four “principles and traditions” which, he concluded, demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples:

1. The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
2. The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.
3. Marriage safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
4. Marriage is a keystone of social order.

Id.' at 12-18.

Applying those principles, the Court concluded that a state's denial to same-sex couples of the right to marry “has the effect of teaching that gays and lesbians are unequal in important respects” and that “[i]t demeans gays and lesbians for [a] State to lock them out of a central institution of the Nation's society.” Id. at 17. The Court found that, no matter how “natural and just” it may have seemed in the past, it is now manifest that limiting the right to marry to opposite-sex couples is inconsistent with “the central meaning of the fundamental right to marry ' .” Id. And that, the Court added, leads to recognition that “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” Id. at 18.

The Court's analysis then turned to the Equal Protection clause, with the majority declaring that the right of same-sex couples to marry is not only part of the liberty promised by the Fourteenth Amendment as a matter of due process, but is “derived, too, from that Amendment's guarantee of equal protection of the laws.” Id. at 19. Discussing the interrelationship of the Due Process and Equal Protection clauses in the identification and definition of a right, the Court noted that its “cases touching upon the right to marry reflect this dynamic.” Id . at 19-21 (citing, e.g. , Loving v. Virginia , 388 U.S. 1 (1967), and Zablocki v. Redhail , 434 U.S. 374 (1978)). The Court analyzed a series of cases reflecting what it called the synergy between due process and equal protection, concluding that

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.

Obergefell, slip op. at 22 (citations omitted).

The Court also addressed the argument that the decision regarding who may marry should be left to the democratic process in each state by pointing out that, under our constitutional system, individuals need not await legislative action to assert a fundamental right. To drive that point home, the Court cited precedents old and new. Quoting a decision from its last Term, the Court noted that, “when the rights of persons are violated, 'the Constitution requires redress by the courts,' notwithstanding the more general value of democratic decision[-]making.” Id . at 24 (quoting Schuette v. BAMN , 572 U.S. ___ (2014), slip op. at 17). It also harkened to a decades-old decision considered one of the Court's most sweeping statements about the fundamental freedoms established by the Bill of Rights, in order to underscore the idea that “[a]n individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” Obergefell, slip op. at 24. As the Court stated:

The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” ' This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

Id . (quoting West Virginia Bd. of Ed. v. Barnette , 319 U.S. 624, 638 (1943)).

The majority opinion ended on the note that it was petitioners' hope not to be excluded from marriage, “one of civilization's oldest institutions.” Indeed, the Court went on, petitioners “ask for equal dignity in the eyes of the law” and “[t]he Constitution grants them that right.” Obergefell, slip op. at 28.

The Dissents

Each of the four dissenters was moved to write a separate opinion. All of them in one way or another accused the majority of overreaching the Court's authority in declaring that same-sex marriage was a right protected under the Constitution. The Chief Justice, for instance, declared that the right of same-sex couples to marry announced by the majority “has no basis in the Constitution or this Court's precedent.” Id., slip op. at 3 (Roberts, C.J., dissenting). Asserting that the Court was transforming marriage, “a social institution that has formed the basis of human society for millennia,” the Chief Justice then asked: “Just who do we think we are?” Id.

Justice Scalia was, to put it mildly, even less nuanced in his criticism of the five Justices who made up the majority, citing what he called “the hubris reflected in today's judicial Putsch.” Id., slip op. at 6 (Scalia, J., dissenting). Not content with denigrating the legal analysis of the majority opinion (“lacking even a thin veneer of law”), Justice Scalia repeatedly belittled the writing style of the opinion's author. For instance, he described the majority opinion as containing “mummeries and straining-to-be-memorable passages” and “showy profundities [that] are often profoundly incoherent.” Id., slip op. at 4, 7-8 (Scalia, J., dissenting). And Justice Scalia stated that he would “hide [his] head in a bag” if he were ever to join in an opinion that began as Justice Kennedy began the majority opinion in this case. Id. at 7-8 n. 22 (Scalia, J., dissenting). Then, in a case of the proverbial pot calling the kettle black, immediately following that crude potshot at his colleague's writing, Justice Scalia decried how the Court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story”! Id.' at 8 n. 22 (Scalia, J., dissenting). As Justice Scalia so pithily stated on the same page of his opinion, “Huh?” Perhaps the senior Associate Justice need look no further than his own vitriolic, insult-laden dissents for examples of the Court's descent from disciplined legal reasoning.

Justice Thomas's criticism in dissent did not rely on ad hominem comments but was no less vehement, accusing the majority of “undermining the political processes that protect our liberty” and “threaten[ing] the religious liberty our Nation has long sought to protect.” Id., slip op. at 14 (Thomas, J., dissenting). His primary focus was on what he considers “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” Id. at 2 (Thomas, J., dissenting). He also viewed petitioners' notion of “liberty” to be wrongheaded because, he said, they did not really seek liberty in the constitutional sense ' which he defined as “freedom from governmental action” ' but sought entitlement to governmental benefits, which is not a constitutional right. Id. at 13 (Thomas, J., dissenting). And Justice Thomas asserted that the majority's decision, by taking the issue of same-sex marriage out of the political process, would have “potentially ruinous consequences for religious liberty” in light of what he called the “all but inevitable” conflict that would arise when “individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.” Id. at 16, 15 (Thomas, J., dissenting).

Justice Alito was also definite in his criticism of what he saw as the overreaching of the majority, warning that the Court's decision “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” Similarly, he declared that the decision “shows that decades of attempts to restrain this Court's abuse of its authority have failed.” Id., slip op. at 6, 7 (Alito, J., dissenting). And just as Justice Thomas had warned of “ruinous consequences” as a result of the majority's decision, Justice Alito concluded his opinion with ominous warnings of his own, finding that the majority's view of liberty, however sincere, “evidences ' the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation” and warning that “all Americans ' should worry about what the majority's claim of power portends.” Id. at 8 (Alito, J., dissenting).

What Now?

In the wake of the Court's decision in Obergefell , reactions were predictable. Same-sex couples and pro-marriage equality advocacy groups celebrated; opponents echoed the sort of dire predictions made by the dissenters on the Court. In the days that followed, officials in some states made noises about defying the decision, including county clerks who refused to issue marriage licenses to same-sex couples (or to anyone!) rather than follow the high Court ruling.

President Obama hailed the decision as “a victory for America”; not surprisingly, politicians campaigning to succeed him also weighed in. Hillary Clinton, the leading Democrat seeking her party's presidential nomination in 2016, called the decision a “historic victory” for marriage equality. Candidates seeking the 2016 Republican presidential nomination expressed their disagreement with the decision in one form or another, ranging from outrage to begrudging acceptance of the Court's ruling. On one extreme, former Arkansas governor Mike Huckabee advocated acts of civil disobedience in response to the decision, urging state officials to ignore it. Other Republican hopefuls, like New Jersey Governor Chris Christie and U.S. Senator Lindsey Graham of South Carolina, were more measured in their responses, saying that they would respect the decision even while they disagreed with it.

The full impact of the Court's Obergefell decision will not be known for some time. It remains to be seen whether the Court simply sped up an inevitable nationwide procession toward marital equality or, as the dissenters have suggested, stifled democratic debate by “judicially imposing” marriage equality, making it more difficult for some to accept gay marriage.

What we do know is that, prior to the Court's decision, same-sex marriage had been legalized in nearly three-fourths of the states plus the District of Columbia and Guam. We also know from a February 2015 poll by CNN/ORC that 63% of Americans believe that same-sex couples have a constitutional right to marry. And given the experience of states where same-sex marriage has been legal, dire predictions of doom for the Constitution, society and the institution of marriage appear to be overblown, even as similar predictions were unrealized in the wake of other seminal Court decisions on marriage, like Loving v. Virginia , 388 U.S. 1 (1967), which struck down laws prohibiting interracial marriage.

It is also clear that, except in the unlikely event that some future Supreme Court panel takes up the issue again and overrules Obergefell, the right of same-sex couples to marry is the law throughout the United States. There are opponents of same-sex marriage, of course, who ' not unlike the dissenters in Obergefell ' have strong, visceral feelings about what the Court decided. Some opponents can be dismissed as merely bigoted, and others dismissed for their refusal to acknowledge the difference between religious rites and civil rights. But other opponents have profound, heartfelt concerns about possible infringements on religious liberty, and those concerns must be addressed and allayed.

To be sure, guaranteeing the fundamental right to marry to same-sex couples and opposite-sex couples alike, while preserving the liberty of religious institutions for whom marriage is the union of a man and a woman, is a challenge. But it is a challenge that can be met. It is, in fact, a challenge that has been taken up and met in states like New York, where marriage equality was achieved through legislation. The 2011 New York law legalizing same-sex marriage was passed only after specific provisions were hammered out to ensure the independence of religious institutions and clergy ' including freedom from suit or governmental penalty ' if they chose not to solemnize, perform or otherwise accommodate a same-sex marriage. Other states, including Minnesota, have included similar religious exceptions in their legislation legalizing same-sex marriage. See, e.g., N.Y. Dom. Rel. Law ' 10-b (McKinney 2014); Minn. Stat. ' 517.09(3) (2014).

Religious exceptions of the kind written into law in states like New York and Minnesota can and should be enacted into law in states where same-sex marriage had not been allowed prior to Obergefell. They are the best way to maintain the same separation of church and state that has been so important to the pro-marriage equality movement in achieving recognition of same-sex couples' right to marry. Indeed, one can only hope that calls for disrespect and even defiance of the Supreme Court's decision will be ignored and that the energies of people of good will on both sides of the issue will be spent on finding ways to protect the liberties of those whose religious beliefs forbid same-sex marriage while recognizing the civil rights of same-sex couples that have been so long denied them.

Frank Gulino, Of Counsel to Silver & Kelmachter, LLP, in New York City, is a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers.