A Manifesto for Marriage Equality

Jay Michaelson

Justice Kennedy swings for the fences in a maximalist opinion that confirms gay marriage is here, and there's no going back

Justice Anthony Kennedy today ensured his legacy as the man who, more than any other individual, secured the legal equality of gays and lesbians.

On the 12-year anniversary of his opinion in Lawrence v. Texas, finding state sodomy laws unconstitutional—and the two-year anniversary of his opinion in Windsor v. United States, finding the federal Defense of Marriage Act unconstitutional—Justice Kennedy today wrote the opinion in Obergefell v. Hodges, finding state bans on same-sex marriage unconstitutional, and securing full marriage equality for gays and lesbians across America.

What’s more, he swung for the fences, rejecting Chief Justice Roberts’s judicial minimalism to write a sweeping 5-4 opinion that reads like a manifesto in favor of same-sex marriage—ironically using many conservative arguments for marriage to do so.

The majority opinion in Obergefell is 28 pages long. Ten pages tell the stories of the case’s plaintiffs, and the history of the debate about marriage equality—already an unusual proportion of humanity to legalese. The next eight pages are about why marriage is a fundamental right, regardless of the genders of those getting married. As Justice Scalia, in particular, complained, they are filled with sweeping statements about the importance and meaning of marriage.

In other words, 18 out of the opinion’s 28 pages are a kind of doctoral thesis on the nature and importance of marriage. Only the last 10 engage in the typical, legalistic way with Supreme Court precedence and 14th Amendment jurisprudence.

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http://www.thedailybeast.com/articles/2015/06/26/supreme-court-on-gay-marriage-it-s-here-and-there-s-no-going-back.html