1. “The appeal is dismissed for want of a substantial federal question.”
–Unsigned one-sentence ruling of the U.S. Supreme Court, October 10, 1972, Baker v. Nelson.
With these 11 words, the Court dismissed, without oral arguments, the appeal of two Minneapolis men, Richard John Baker and James Michael McConnell, who argued that a clerk’s refusal to issue them a marriage license violated their federal constitutional rights. (Source: Courting Justice, Gay Men and Lesbians v. The Supreme Court, by Joyce Murdoch and Deb Price.)
2. “I don’t believe I ever met a homosexual.”
–Justice Lewis Powell, Jr., in early 1986.
In preparing for Bowers v. Hardwick, a landmark case challenging the constitutionality of a Georgia law criminalizing homosexual sodomy, Powell, then 78, made this observation to one of his law clerks, Carter Cabell Chinnis, Jr. Chinnis didn’t tell Powell that Chinnis was himself gay, as he knew many of Powell’s previous clerks had been, but wondered if Powell suspected it. Powell looked for a compromise position in the case, but couldn’t find one, and voted in the end to uphold the felony statute. [Sources: Justice Lewis F. Powell, Jr., by John Calvin Jeffries, Jr., and Courting Justice (above).]
3. “[T]o claim that a right to engage in [homosexual] conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”
–Justice Byron White, Bowers v Hardwick, June 30, 1986.
White wrote this opinion for the Court’s 5-4 majority, upholding Georgia’s law criminalizing homosexual sodomy, evidently finding it difficult to take the plaintiffs’ arguments seriously.
4. “Condemnation of [homosexual] practices is firmly rooted in Judeao-Christian moral and ethical standards.”
–Chief Justice Warren Burger, concurring in Bowers, June 30, 1986.
In joining the majority opinion, upholding Georgia’s law criminalizing homosexual sodomy, Chief Justice Burger’s added: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Homosexual sodomy was a capital crime under Roman law. … [Eighteenth century English jurist Sir William] Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature,’ and ‘a crime not fit to be named.'”
5. “[A] bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
–Justice Anthony Kennedy, Romer v Evans, May 20, 1996.
Justice Kennedy wrote the opinion of the Court for a 6-3 majority. After several cities and villages in Colorado had passed ordinances banning discrimination based on sexual orientation, Colorado voters passed, by referendum, a state constitutional amendment banning and invalidating those ordinances. In Romer, the Court struck down that referendum, marking its first important turn toward protecting gay rights.
6. “The court has mistaken a Kulturkampf for a fit of spite.”
–Justice Antonin Scalia, dissenting in Romer v. Evans, May 20, 1996.
Scalia’s argument continued: “Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.”
7. “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
–Justice Anthony Kennedy, Lawrence v. Texas, June 26, 2003.
In this landmark ruling, the Court, 6-3, overruled Bowers v. Hardwick, and struck down the Texas law criminalizing homosexual sodomy. Kennedy continued: “[A]dults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
8. “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
–Justice Antonin Scalia, dissenting in Lawrence v. Texas, June 26, 2003.
Though Scalia obviously sought to chide the majority for what he regarded as poor reasoning, many lower-court judges later cited his dissent as proof that the logic of Lawrence now required according constitutional protection to same-sex marriage. Scalia had also written: “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’... What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution’?”
9. “DOMA writes inequality into the entire United States Code.”
–Justice Anthony Kennedy, United States v. Windsor, June 26, 2013.
Justice Kennedy wrote this opinion for the 5-4 majority, striking down a key provision of the federal Defense of Marriage Act (DOMA), which had forbidden same-sex couples, even when lawfully married under state law, from being treated as “spouses” under federal law.
“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” Kennedy wrote. “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.”
10. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
–Justice Scalia, dissenting in United States v. Windsor, June 26, 2013.
In his apoplectic dissent, Justice Scalia once again seemed to unwittingly play into the hands of those who favored a constitutional right to same-sex marriage. “The real rationale of today’s opinion,” Scalia wrote, “whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages. … How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
11. “Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions.”
–Circuit Judge Jeffrey Sutton, Obergefell v. Hodges; Tanco v Haslam; DeBoer v. Snyder; Bourke v. Beshear., Nov 6, 2014.
Two months ago, writing for a 2-1 majority, Judge Sutton, of the U.S. Court of Appeals for the Sixth Circuit, upheld same-sex marriage bans in four cases arising from Michigan, Ohio, Tennessee and Kentucky. He said his hands were tied by the Supreme Court’s one-line 1972 dismissal in Baker v. Nelson (see point 1, above). Since four other U.S. Courts of Appeals had by then ruled that there was a constitutional right to same-sex marriage—and 36 states by this point permitted such marriages—Judge Sutton’s ruling created a “circuit split,” which frequently triggers U.S. Supreme Court review.
In dissent, circuit judge Martha Craig Daughtrey wrote: “If ever there was a legal ‘dead letter’ emanating from the Supreme Court, Baker v. Nelson … is a prime candidate. It lacks only a stake through its heart.”
12. “The petitions … are granted [for] the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?...”
–unsigned order of the U.S. Supreme Court, January 16, 2015, Obergefell v. Hodges; Tanco v Haslam; DeBoer v. Snyder; Bourke v. Beshear.
Using standard, understated, formulaic language, the Court agreed on Friday to decide the issue Jack Baker and Mike McConnell tried to bring before it in 1972: Do same-sex couples have a constitutional right to get married? The issue will be argued in late April, and the historic answer handed down in late June.
