Editor’s note: The U.S. Supreme Court ended its term with historic rulings and orders in a variety of cases. Here is a look at several of them.
In a landmark ruling, a divided Supreme Court June 26 said same-sex marriage is constitutional nationwide.
“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,” wrote Justice Anthony Kennedy for the 5-4 majority. “This is true for all persons, whatever their sexual orientation.”
As of June 26, 36 states, the District of Columbia and Guam allowed same-sex marriage. Some of those states passed laws allowing it, while others have done so under court ruling.
Shortly after the opinion was announced, Kentucky Gov. Steven Beshear ordered county clerks to immediately begin issuing marriage licenses to same-sex couples who seek them. The Associated Press reported that same-sex couples in some jurisdictions in Georgia, Texas, Arkansas, Ohio, Michigan, South Dakota and Nebraska already were being married.
The four justices who dissented from the ruling included warnings about dire consequences for the nation, ranging from “a threat to American democracy” to future battles the court will have to settle over how religious institutions may apply faith-based opposition to such marriages in day-to-day functions in society.
The main opinion recognized in several places the role of religious beliefs in the questions surrounding same-sex marriage. Kennedy said toward the conclusion of his 28-page opinion that “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
The First Amendment ensures protection for religious organizations and individuals as they seek to teach the principles “that are so fulfilling and so central to their lives and faiths,” he continued, and to “their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.
“In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the state to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
The court walked through how laws pertaining to marriage have changed over the centuries, notably referring to 20th century prohibitions on marriage between people of different races, and laws that treated a woman as legally subject to the will of her husband.
It also talked about a variety of ways in which the status of state-recognized marriage affects couples, their children and society.
Kennedy cited evidence to the court about the loving, supportive families that can be formed by gays and lesbians and said: “Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”
He said that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”
However, he added, “when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”
Obergefell v. Hodges bundled four cases out of the 6th U.S. Circuit Court of Appeals, from Tennessee, Michigan, Kentucky and Ohio, each of which had limited marriage to heterosexual couples. The circuit court had upheld the state prohibitions on same-sex couples being entitled to marry.
The plaintiffs who sued raised a variety of issues that affected them. James Obergefell, for whom the case is titled, sued after the state of Ohio refused to list him as the surviving spouse on the death certificate of John Arthur, whom he married in Maryland. A Michigan couple sued after they were denied the right to jointly adopt the children they are raising together. Two other cases challenged Tennessee’s and Kentucky’s refusal to recognize marriages from other jurisdictions.
Kennedy was joined in the majority by Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The four justices who dissented in the ruling did so with vehemence. Each wrote a separate dissent, with different combinations of the four signing onto each others’ opinions.
Chief Justice John Roberts, joined by Justices Antonin Scalia and Clarence Thomas, focused primarily on the argument that the court was acting precipitously, ruling on a matter that the states were still considering.
“Whether same-sex marriage is a good idea should be of no concern to us,” Roberts wrote. “Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”
Roberts went on to say that “although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a state change its definition of marriage. And a state’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a state are free to expand marriage to include same-sex couples, or to retain the historic definition.”
Roberts also responded to the majority’s references to the religious rights of those who disagree with same-sex marriage, saying it “creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is — unlike the right imagined by the majority — actually spelled out in the Constitution.” He noted that every state that “adopted same-sex marriage democratically” included accommodations for religious practice.
“The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations,” Roberts wrote. “The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage. The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage.”
He listed, as possible areas of conflict, when “a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.”
At the oral argument for the cases in April, Roberts noted, Solicitor General Donald B. Verrilli Jr. “candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.”
Roberts said there is little doubt such questions will be before the court soon.
“Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today,” he said.
Scalia, in typically colorful terminology, said “what really astounds is the hubris reflected in today’s judicial putsch” that he also defined as a “threat to American democracy.” In finding a 14th Amendment right to marriage by same-sex couples, he wrote in a brief joined by Thomas, the majority concluded “that every state violated the Constitution for all of the 135 years between the 14th Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the 14th Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
Thomas, in his dissent, which was joined by Scalia, said the parties who sued “cannot claim, under the most plausible definition of ‘liberty’ that they have been imprisoned or physically restrained by the states for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace” and been able to hold marriage ceremonies in states that recognize them. They also have been able to travel freely, making homes where they please and have not been incarcerated or physically restrained, he said. “Petitioners have been left alone to order their lives as they see fit.”
Health care subsidies
Writing that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” a 6-3 majority of the Supreme Court June 25 upheld tax subsidies for participants in health care exchanges run by the federal government in states that refused to create them.
In the majority opinion, Chief Justice John Roberts disentangled what he said was “more than a few examples of inartful drafting” in how the 2010 law was written that contributed to the interpretation that federal subsidies for people with lower income should only be available to residents of states that created their own health care exchanges.
The subsidies were challenged by four residents of Virginia — which has a federal exchange — who don’t want to purchase health insurance and argued that the tax credits they would receive to do so are not what the law intended. Without the subsidies, their income level would allow them to be exempt from the requirement of the Affordable Care Act to purchase insurance. Lower courts disagreed and the Supreme Court upheld those decisions.
Thirty-four states use the federal insurance exchange because they did not set up their own. An estimated 6.4 million people who live in those states were at risk of losing subsidies that average $272 a month to help pay insurance premiums.
In another in a series of bitterly divided end-of-term cases, the Supreme Court June 29 upheld the execution protocol used by Oklahoma and several other states.
The 5-4 ruling written by Justice Samuel Alito upheld lower courts that said the use of the drug midazolam in lethal injection does not violate Eighth Amendment protections against cruel and unusual punishment.
The majority opinion in Glossip v. Gross noted that it has been previously established multiple times that capital punishment is constitutional and only delved into whether the claims by Oklahoma death-row inmates that the effects of the drugs used in lethal injection are unnecessarily painful.
Among the reasons Alito cited in upholding lower courts was that “the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain.” Justices Antonin Scalia and Clarence Thomas each filed concurring opinions. Alito’s majority ruling also was joined by Chief Justice John Roberts, Scalia, Thomas and Justice Anthony Kennedy.
HHS mandate shield
In a June 29 order, the Supreme Court continued to shield several Pennsylvania religious institutions from having to provide employees with health care coverage that includes contraceptives.
The order in a case filed by the bishops and the Dioceses of Pittsburgh and Erie, Pennsylvania, their charitable institutions and a school said the government may not enforce the challenged provisions of the Affordable Care Act, pending final resolution of legal challenges on the merits of the institutions’ objections to what is known as the contraceptive mandate.
Justice Samuel Alito in April had granted an interim injunction to the Pennsylvania ministries.
Martin Nussbaum, a Colorado Springs, Colorado, attorney specializing in religious institutions and general counsel for the Catholic Benefits Association, explained to Catholic News Service that the June 29 order “is quite nuanced.” He said the effect of the order is to extend to the Pennsylvania church entities the same kind of temporary protection from having to provide contraceptive coverage that it previously granted to Wheaton College and the Little Sisters of the Poor. The two dioceses, their charities and a prep school, each of which opposes the contraceptive mandate, continue to be shielded from having to comply, he said. They also do not have to follow procedures established by the Department of Health and Human Services that would trigger the provision for third-party administrators to provide insurance coverage for contraceptive services.
Block on ultrasound law
The Supreme Court June 15 left a lower court ruling intact that blocked North Carolina’s law requiring physicians to perform an ultrasound on women seeking abortions, and to show it to the women and describe the fetus’ features.
Without comment, the court let stand a 4th U.S. Circuit Court of Appeals ruling from last December that overturned the 2011 law on First Amendment grounds.
By declining to take the case, the court let stand lower court rulings blocking the law as violating the First Amendment rights of physicians. The lower court said: “This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind.” The ruling said North Carolina’s law goes too far beyond what states have customarily done in the interest of “ensuring informed consent and in protecting the sanctity of life in all its phases.”