Kennedy: “Democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”

The U.S. Supreme Court’s June 26 decision striking down state bans against same-sex marriage has been touted as “probably the strongest manifesto in favor of marriage” and pilloried as “a threat to American democracy.” It has energized celebrations at LGBT Pride events and private living rooms across the country and prompted warnings of “an all out assault against the religious freedom rights of Christians who disagree with this decision.”

But despite these vastly different reactions, there has not yet been a threat by any state to secede from the union that President Obama characterized as “a little more perfect” now. As of Monday, 12 of the 13 of the states that had statewide bans in effect have started issuing licenses in at least some, if not all, their counties.

Mississippi’s attorney general told clerks to delay issuing licenses until a formal order to do so is issued from the federal appeals court. Louisiana’s Governor Bobby Jindal has instructed clerks that they do not have to issue licenses if they have religious objections to doing so. And the Texas attorney general is encouraging clerks to raise religious objections to issuing the licenses but has warned them that, doing so, could lead to “litigation and/or a fine.”

Republican presidential hopeful Mike Huckabee has vowed that he “will not acquiesce to an imperial court,” a statement that will almost certainly come back to haunt him, given that the constitution requires the president “shall take Care that the Laws be faithfully executed.” (President Obama continued to enforce the Defense of Marriage Act until the Supreme Court struck it down as unconstitutional.)

The huff and puff of opponents to allowing same-sex couples to marry will soon die down, and the legal bricks that will remain standing in the Supreme Court’s Obergefell v. Hodges ruling are these:

• the word “liberty” in the 14^th Amendment of the U.S. Constitution includes the fundamental right of a citizen to marry
• state bans against allowing same-sex couples to marry burden the “liberty” of gay and lesbian citizens
• the bans are unconstitutional infringements on the rights to due process and equal protection
• and states with such bans have not shown “a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe.”

The word “liberty” was at the center of the Obergefell decision, authored by Justice Anthony Kennedy. He used the word 25 times. The dissents used it 122 times.

Kennedy noted that the 14^th Amendment to the constitution says that “no State shall ‘deprive any person of life, liberty, or property, without due process of law’.” He cited Supreme Court precedent saying that the word “denotes not merely freedom from bodily restraint but also the right “to marry, establish a home and bring up children….” The quote came from a 1923 case, Meyer v. Nebraska, that struck down a state ban on the use or teaching of foreign languages in schools and which referred to numerous other precedents discussing the meanings of “liberty.”

None of the four justices in dissent mentioned Meyer. Instead, each claimed that the Kennedy majority based its decision on non-legal grounds. Chief Justice John Roberts contends the majority “relied on its own conception of liberty” and that its opinion was rooted in “social policy and considerations of fairness.” Justice Antonin Scalia said the majority engaged in “constitutional revision.” Justice Clarence Thomas said the majority’s opinion was “based on an imaginary constitutional protection and revisionist view of our history and tradition.” Justice Samuel Alito said the majority “invent[ed] a new right and impose[d] that right on the rest of the country.”

Some will argue that it was the dissenters who invented something new: the idea that, when there is a vigorous public debate about a matter, the Supreme Court should not act.

“Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today,” wrote Roberts. “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

(A Williams Institute fellow, Adam Romero, said his research before and after the Supreme Court struck down DOMA found the court’s action “fostered positive attitude changes.”)

All four dissenters lamented the end of the national debate over same-sex marriage.

The debate over marriage for same-sex couples, wrote Scalia, “displayed American democracy at its best.”

“Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views…. Win or lose,” Scalia wrote, “advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.”

Scalia: In Bush v. Gore, he was for the court intervening in the democratic process.

But that’s not the system Scalia defended in 2000 when he went along with the 5 to 4 decision in Bush v. Gore that delivered the presidential election to Republican George W. Bush. That opinion (which did not identify an author) said that the majority admired the Constitution’s design to leave certain matters “to the people, through their legislatures, and to the political sphere” with one notable exception:

“When contending parties invoke the process of the courts… it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”

That latter line might well have fit into the majority opinion for Obergefell. Instead, Kennedy wrote, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”

“The dynamic of our constitutional system,” Kennedy wrote, “is that individuals need not await legislative action before asserting a fundamental right.”

Bonauto: “In our system, you don’t have to convince every single person before the court vindicates your constitutional rights.”

Gay & Lesbian Advocates & Defenders attorney Mary Bonauto put it most succinctly on The Rachel Maddow Show June 26: “In our system, you don’t have to convince every single person before the court vindicates your constitutional rights.”

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