On Friday, same-sex marriage became a legal right throughout the United States. The Supreme Court ruled 5-to-4 that bans on same-sex marriage – which persisted in thirteen states – were contrary to the Constitution, specifically the Fourteenth Amendment which concerns citizenship and the right to equal protection under the law.
The case before the Supreme Court was Obergefell v. Hodges. John Arthur and James Obergefell, residents of Ohio, had been married legally out-of-state, in Maryland in July 2013. With Arthur terminally ill, the couple wanted Obergefell’s name to appear listed as his spouse on his death certificate. The case passed through the district court, and judge Timothy S. Black ultimately determined – in April 2014 – that Ohio must recognise same-sex marriages from other jurisdictions. However, his decision was reversed by the Sixth Circuit Court of Appeals in November.
In January, the Supreme Court agreed to review the case, and consolidated it with three others which equally challenged state recognition of same-sex marriage: Bourke v. Beshear, DeBoer v. Snyder, and Tanco v. Haslam. The oral arguments were heard at the end of April. Reaching the court’s decision, justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan voted to make same-sex marriage a fundamental right. The dissenting justices were Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts.
The decision marks the successful climax of decades of activism. The city of San Francisco, under Mayor Gavin Newsom, became the first municipality in the United States to issue same-sex marriage licenses, issuing between 12 February and 11 March 2004 licenses to about 4,000 couples. The procedure was then halted by the California Supreme Court. Newsom had been impelled to action after listening to the 2004 State of the Union Address delivered by President George W. Bush, in which Bush expressed support for a constitutional amendment decisively blocking same-sex marriage.
Just a few months later, on 17 May 2004, Massachusetts became the first U.S. state to legalise same-sex marriage. In the eleven years since, profoundly changing attitudes – with nationwide polls suggesting that a majority of Americans now support such unions – saw an additional thirty-six states legalise same-sex marriage, at least to some degree. The thirteen holdouts were Arkansas, Georgia, Louisiana, Kentucky, Michigan, Missouri, Mississippi, Nebraska, North Dakota, South Dakota, Ohio, Texas, and Tennessee – though in eight of these rulings challenging their bans remained under review.
While the four dissenting justices each offered their own opinion – with some questioning the democratic worth of the Supreme Court’s decision – the majority opinion was written by Justice Anthony Kennedy. Forwarding the concept of the ‘Living Constitution’, Kennedy wrote:
‘The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.’
And in his closing remarks:
‘No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. 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. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.’
Kennedy also authored the Supreme Court’s two previous landmark decisions concerning gay rights. United States v. Windsor, decided in June 2013, declared as unconstitutional Section 3 0f the Defense of Marriage Act, which had defined marriage as a union strictly between a man and a woman. Lawrence v. Texas, decided ten years earlier in June 2003, struck down sodomy laws in Texas and thirteen other states: making same-sex sexual activity legal across the United States.
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Amidst the great joy felt and expressed in the United States, the response at least in Western Europe was sometimes more restrained. I have witnessed various instances of a sentiment – expressed in real pleasure over the outcome, with a genuine sense of surprise, or even with slight condescension – which essentially states ‘finally’, or ‘about time’. It is as though the United States is seen, here as well as elsewhere, as hopelessly and haplessly behind.
But it must be remembered that, after the United States’ decision, same-sex marriage is still legal in only eighteen countries worldwide. These are Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, the United Kingdom, the United States, and Uruguay. The Netherlands was the first, in April 2001; and before the United States, Luxembourg was the latest, with its law coming into effect on 1 January this year.
Same-sex marriage is pending in Slovenia, which would become the first post-communist country and the first in Central Europe to legalise the practise. In Finland, following a citizens’ initiative, same-sex marriage will become legal from 1 March 2017. Meanwhile in Ireland, a constitutional referendum held in May, approved by 62% of voters, will see same-sex marriage legalised by the end of 2015. In Mexico, same-sex marriages are recognised in all thirty-one states; but they can only be performed in Mexico City, Coahuila, Chihuahua, and Quintana Roo.
When same-sex marriage was legalised in Massachusetts back in 2004, it was only the sixth jurisdiction in the world to make it so: after the Netherlands, Belgium, and the Canadian provinces of British Columbia, Ontario, and Quebec. One of the United States’ great strengths – the extent to which its people identify as American regardless of origin, race, or sexual orientation – alongside the country’s sometimes overwhelming contradictions and complexities, can make it appear one thing. The confrontational nature of its political discourse and its political process can make it appear two things, with a chasm between. Yet the United States has always been many things, and the debate on same-sex marriage hasn’t cut too simply across lines of nationality, race, gender, or even religion.
To condescend to the United States’ embrace of same-sex marriage is to ignore the scope and diversity of the country; the legacy of its activism and the vitality of its ongoing debates; and its real political status as a forerunner on this and on other matters concerning gay rights. Culturally – as even such a provocatively European artist as Lars von Trier has suggested – we in Western Europe are all Americans. If we doubt or sometimes dismay over its politics, dismiss its food, look elsewhere to define and differentiate our tastes in music and fashion, somewhere and in some deep-rooted and meaningful way, we intuitively love America: for those values it has wrought, and for the art and entertainment which shapes and gives so much to our lives.
Difficulties remain: there are other causes to be fought, both implicitly connected and curiously overlapping with gay rights; while the impact of Religious Freedom Restoration Acts on gay rights remains controversial. Some southern states have indicated a willingness to flout or at least stall the implementation of the Supreme Court’s ruling.
Beyond the voices of the dissenting justices, every Republican presidential candidate for 2016 condemned the decision, including front-runners Mike Huckabee, Scott Walker, Bobby Jindal, Ted Cruz, Jeb Bush, and Marco Rubio – though Bush and Rubio have at least stated they would not support an amendment to overturn Friday’s result. The weekend saw annual pride marches take place in London and San Francisco, but also in Istanbul, where water cannon and rubber bullets were reportedly used on the gathering crowds near Taksim Square. Still, on Friday and over the weekend, in the United States and beyond, a sense of happiness, of rightness and relief and resurgent optimism, has been wonderfully palpable.