Respect for Marriage Grounds a Compelling Supreme Court Decision

Hollingsworth_v._Perry[1]Supreme Court Justice Anthony Kennedy’s opinions in gay rights cases have always reached for rhetorical heights, and some critics confuse that with mushy thinking. But his decision in the same-sex marriage case Obergefell v. Hodges is compelling precisely because it avoids some of the cheap clichés that have marked many prior lower court opinions declaring a right to same-sex marriage.

Justice Kennedy, writing for the Court, did not claim that opponents of same-sex marriage are merely bigoted. To the contrary, he acknowledged that many opponents “reach that conclusion based on decent and honorable religious or philosophical premises.” Justice Kennedy did not hold that bans on same-sex marriage are simply “irrational” as some other judges have. Instead, he relied on the fundamental right to marry.

Other courts had only thought it possible to uphold a right to same-sex marriage by hollowing out the significance of marriage itself. But Justice Kennedy did just the opposite. Thus, while the Massachusetts Supreme Judicial Court insisted that civil marriage is a “wholly secular institution,” a mere civil contract, Justice Kennedy emphasized the “centrality of marriage to the human condition” as reiterated in “untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths.”

Similarly, Justice Kennedy did not dismiss the link between marriage and procreation. Instead, he held that one reason “for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education,” while also insisting that the exercise of the right in particular cases cannot be conditioned on the ability or willingness to have children.

More generally, Justice Kennedy argued, “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect — and need — for its privileges and responsibilities.” Similarly, near the end of the opinion, he wrote, “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.”

This is, in short, in many of the best respects, a deeply “conservative” opinion, upholding not only the right to same-sex marriage but the abiding constitutional, cultural, religious, and moral significance of marriage itself.

Concluding paragraph of today's historic decision.

Concluding paragraph of today’s historic decision.

Also posted in Rutgers Today and Religious Left Law.

Perry Dane is a Professor of Law at Rutgers School of Law – Camden. His prior writings on same-sex marriage include “Natural Law, Equality, and Same-Sex Marriage.”

First Circuit Court Finds Defense of Marriage Act Unconstitutional

Plaintiffs Nancy Gill and Marcelle Letourneau— by Adam Bonin

A unanimous three-judge panel of the First Circuit Court of Appeals has ruled that there is no justification for the Defense of Marriage Act to disallow recognition to a same-sex couple legally married under Massachusetts law. The court’s reasoning follows the arguments advanced in JSPAN’s amicus curiae brief. Primary credit for the content of our brief goes to Philadelphia Jewish Voice Board Member Prof. Perry Dane of Rutgers Law School, an active member of the JSPAN Church-State Policy Center. Our strongest congratulations to Perry!

The court applied “intensified scrutiny” to DOMA’s treatment of minorities that are subject to discrepant treatment generally. Finding no federal interest that adequately justifies the statute, the court ruled that DOMA denies equal protection to gays and must be struck down.


Reprinted courtesy of the Jewish Social Policy Action Network.