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The United States Supreme Court has changed the whole meaning of family in America by declaring a right for people of the same sex to marry But the Court was closely and bitterly divided, as NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Emotions ran high inside the courtroom yesterday, on the bench and off. Lawyers wept, as did many of the men and women who challenged state laws banning same-sex marriage. Jim Obergefell, the lead plaintiff in the case, cried as he fidgeted with the two fused wedding bands on his ring finger. In 2013, Obergefell learned that his home state of Ohio would not recognize his Maryland marriage or treat him as the surviving spouse of this dying partner, John Arthur. So the couple sued, and yesterday, Obergefell, now a widower, had with him his late husband's photograph.
JIM OBERGEFELL: I was thinking of John a great deal and missing him.
TOTENBERG: Justice Anthony Kennedy's opinion for the Court majority would tell Obergefell's story and the story of two other couples. Rights guaranteed by the Constitution are not stagnant, said Justice Kennedy. Marriage used to be arranged. Women were deemed to be without rights and totally subservient to their husbands. And until 1967, interracial marriages were a crime in many states. The nature of injustice is that we may not always see it in our own time, and the writers of the Bill of Rights in the Constitution knew that, he said. So they entrusted to future generations the right of all persons to enjoy liberty as we learn its meaning.
In the modern world, Kennedy concluded, marriage is a fundamental constitutional right, not just for straight couples but for same-sex couples, too. No union is more profound than marriage, he said, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. And just as same-sex couples are entitled to the happiness and benefits of marriage, he said, so too are the hundreds of thousands of children being raised by these couples, children who suffer the stigma of knowing their families are somehow lesser.
Chief Justice John Roberts, in his first oral dissent during his 10 years on the Court, blasted the decision as a naked power grab that short-circuited the principle of democratic self-governance. Today, five lawyers have redefined marriage, he said. Just who do they think they are? This is a court, not a legislature. We have the power to say what the law is, not what it should be.
Justices Scalia, Thomas and Alito each wrote separate dissents as well. But it was the usually conservative Kennedy who swung the outcome of the case in the other direction, as he has in every other gay-rights decision of the past two decades. In practical terms, the high court decision means that within days or weeks, same-sex marriage should be legal in every state in the nation. Tony Perkins of the conservative Family Research Council said the Court is ignoring reality and plunging itself back into the Roe v. Wade quagmire.
TONY PERKINS: Just as we saw in 1973 on the abortion issue, the Court said they were going to solve that issue once and for all. You know, 42 years later they have not solved that issue. It's an issue in every election from president on down, and this will be, too.
NANCY COTT: I do not see it as analogous to Roe v. Wade.
TOTENBERG: Harvard professor Nancy Cott is the author of "Public Vows: A History Of Marriage And The Nation."
COTT: This is a case where one can live and let live. That is, couples of the same sex can marry and couples of different sex can marry and all can live happily ever after, which is not the case with either you do have abortion or you don't have abortion. The two sides can't really coexist.
TOTENBERG: University of Minnesota law professor Dale Carpenter agrees, noting that abortion involves questions of life and death, but then in states where the courts have legalized same-sex marriage...
DALE CARPENTER: There's been an initial resistance, but then that has quickly died down and people have moved on.
TOTENBERG: The Supreme Court's decision follows a revolution in public attitudes more rapid and dramatic than at any time in memory. In 1996, on average, public opinion polls showed only 27 percent of the public favoring legalization. This year, although people in some states still adamantly resisted gay marriage, polls put the approval number nationally at well over 50 percent.
What's more, young people of all political stripes favored gay marriage, and the trend in every demographic and religious group was towards approval.
Still, yesterday's decision was stunning in the context of history. Prior to 2003, no state had legalized same-sex marriage, and before 2000, no country had done it. Now 21 countries have legalized same-sex marriage and the United States isn't even the first this month. Two weeks ago, the Mexican Supreme Court reached a similar decision. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
