TIME LGBT

Ben & Jerry’s Just Renamed This Ice Cream Flavor in Honor of Gay Marriage

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Ben & Jerry's

Chocolate Chip Cookie Dough has a new name

Ben & Jerry’s, a longstanding corporate champion of gay rights, is celebrating the Supreme Court’s ruling legalizing gay marriage throughout the U.S. by renaming one of its ice cream flavors. During the summer the chain will rename its Chocolate Chip Cookie Dough ice cream to “I Dough, I Dough” at participating stores. Proceeds from the ice cream sales will go to the Human Rights Campaign, a nonprofit that advocates for LGBT rights.

This is not the first time Ben & Jerry’s has been a vocal supporter of gay rights. In 1989 the company was the first major employer in Vermont to offer health insurance to same-sex partners of employees. More recently Ben & Jerry’s joined a petition of major businesses asking the Supreme Court to strike down same-sex marriage bans across the U.S.

TIME Courts

Read the Supreme Court Ruling That Recognized Gay Marriage Nationwide

Anthony Kennedy is an Associate Justice of the Supreme Court of the United States

"No union is more profound than marriage"

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

I

These cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman. See, e.g., Mich. Const., Art. I, §25; Ky. Const. §233A; Ohio Rev. Code Ann. §3101.01 (Lexis 2008); Tenn. Const., Art. XI, §18. The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.

Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. Citations to those cases are in Appendix A, infra. The respondents appealed the decisions against them to the United States Court of Appeals for the Sixth Circuit. It consolidated the cases and reversed the judgments of the District Courts. DeBoer v. Snyder, 772 F. 3d 388 (2014). The Court of Appeals held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State.

The petitioners sought certiorari. This Court granted review, limited to two questions. 574 U. S. ___ (2015). The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a samesex marriage licensed and performed in a State which does grant that right.

II

Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.

A

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.

That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.

The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.

Recounting the circumstances of three of these cases illustrates the urgency of the petitioners’ cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a stateimposed separation Obergefell deems “hurtful for the rest of time.” App. in No. 14–556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur’s death certificate.

April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.

Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.

The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.

B

The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.

For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000); S. Coontz, Marriage, A History 15–16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).

These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.

This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5–28.

For much of the 20th century, moreover, homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. See Position Statement on Homosexuality and Civil Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7–17.

In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.

This Court first gave detailed consideration to the legal status of homosexuals in Bowers v. Hardwick, 478 U. S. 186 (1986). There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans, 517 U. S. 620 (1996), the Court invalidated an amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575.

Against this background, the legal question of same-sex marriage arose. In 1993, the Hawaii Supreme Court held Hawaii’s law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its implications and reaffirmed in their laws that marriage is defined as a union between opposite-sex partners. So too in 1996, Congress passed the Defense of Marriage Act (DOMA), 110 Stat. 2419, defining marriage for all federallaw purposes as “only a legal union between one man and one woman as husband and wife.” 1 U. S. C. §7.

The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State’s Constitution guaranteed same-sex couples the right to marry. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003). After that ruling, some additional States granted marriage rights to samesex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B, infra. Two Terms ago, in United States v. Windsor, 570 U. S. ___ (2013), this Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples “who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” Id., at ___ (slip op., at 14).

Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider. With the exception of the opinion here under review and one other, see Citizens for Equal Protection v. Bruning, 455 F. 3d 859, 864–868 (CA8 2006), the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution. There also have been many thoughtful District Court decisions addressing same-sex marriage—and most of them, too, have concluded samesex couples must be allowed to marry. In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions. These state and federal judicial opinions are cited in Appendix A, infra.

After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage. See Office of the Atty. Gen. of Maryland, The State of Marriage Equality in America, State-by-State Supp. (2015).

III

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Griswold v. Connecticut, 381 U. S. 479, 484–486 (1965).

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.

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. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 116 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U. S. 632, 639–640 (1974); Griswold, supra, at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942); Meyer v. Nebraska, 262 U. S. 390, 399 (1923).

It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part. This was evident in Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.

Still, there are other, more instructive precedents. This Court’s cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g., Lawrence, 539 U. S., at 574; Turner, supra, at 95; Zablocki, supra, at 384; Loving, supra, at 12; Griswold, supra, at 486. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454; Poe, supra, at 542–553 (Harlan, J., dissenting).

This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386.

Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___– ___ (slip op., at 22–23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”).

A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. 381 U. S., at 485. Suggesting that marriage is a right “older than the Bill of Rights,” Griswold described marriage this way: “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. ” Id., at 486.

And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U. S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made samesex intimacy a criminal act. And it acknowledged that “[w]hen 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.” 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer, 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: “[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.” Zablocki, 434 U. S., at 384 (quoting Meyer, supra, at 399). Under the laws of the several States, some of marriage’s protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, supra, at ___ (slip op., at 23). Marriage also affords the permanency and stability important to children’s best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22–27.

As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents, see id., at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.

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. See Windsor, supra, at ___ (slip op., at 23).

That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of the precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.

Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago: “There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs.” 1 Democracy in America 309 (H. Reeve transl., rev. ed. 1990).

In Maynard v. Hill, 125 U. S. 190, 211 (1888), the Court echoed de Tocqueville, explaining that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been “‘a great public institution, giving character to our whole civil polity.’” Id., at 213. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community.

For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6–9; Brief for American Bar Association as Amicus Curiae 8–29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor, 570 U. S., at ___ – ___ (slip op., at 15–16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.

There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.

Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which called for a “‘careful description’” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg, 521 U. S., at 752–773 (Souter, J., concurring in judgment); id., at 789–792 (BREYER, J., concurring in judgments).

That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566–567.

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. 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. But 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.

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. See M. L. B., 519 U. S., at 120– 121; id., at 128–129 (KENNEDY, J., concurring in judgment); Bearden v. Georgia, 461 U. S. 660, 665 (1983). This interrelation of the two principles furthers our understanding of what freedom is and must become.

The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” 388 U. S., at 12.

With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Ibid. The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.

The synergy between the two protections is illustrated further in Zablocki. There the Court invoked the Equal Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marrying without judicial approval. The equal protection analysis depended in central part on the Court’s holding that the law burdened a right “of fundamental importance.” 434 U. S., at 383. It was the essential nature of the marriage right, discussed at length in Zablocki, see id., at 383–387, that made apparent the law’s incompatibility with requirements of equality. Each concept—liberty and equal protection—leads to a stronger understanding of the other.

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of coverture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 (1980); Califano v. Westcott, 443 U. S. 76 (1979); Orr v. Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.

Other cases confirm this relation between liberty and equality. In M. L. B. v. S. L. J., the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to appeal the termination of their parental rights. See 519 U. S., at 119–124. In Eisenstadt v. Baird, the Court invoked both principles to invalidate a prohibition on the distribution of contraceptives to unmarried persons but not married persons. See 405 U. S., at 446–454. And in Skinner v. Oklahoma ex rel. Williamson, the Court invalidated under both principles a law that allowed sterilization of habitual criminals. See 316 U. S., at 538–543.

In Lawrence the Court acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State “cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Id., at 578.

This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383–388; Skinner, 316 U. S., at 541.

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as oppositesex couples.

IV

There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages. See DeBoer, 772 F. 3d, at 409.

Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life—state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities— have devoted substantial attention to the question. This has led to an enhanced understanding of the issue—an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id., at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id., at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of samesex couples to marry.

This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights. In Bowers, a bare majority upheld a law criminalizing same-sex intimacy. See 478 U. S., at 186, 190–195. That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect, Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court. See id., at 199 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id., at 214 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why Lawrence held Bowers was “not correct when it was decided.” 539 U. S., at 578. Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.

A ruling against same-sex couples would have the same effect—and, like Bowers, would be unjustified under the Fourteenth Amendment. The petitioners’ stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with the petitioners’ cases, the Court has a duty to address these claims and answer these questions.

Indeed, faced with a disagreement among the Courts of Appeals—a disagreement that caused impermissible geographic variation in the meaning of federal law—the Court granted review to determine whether same-sex couples may exercise the right to marry. Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society’s most basic compact. Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.

The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See Kitchen v. Herbert, 755 F. 3d 1193, 1223 (CA10 2014) (“[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples”). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.

Finally, 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 that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, 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 samesex 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.

V

These cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the case of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples.

Being married in one State but having that valid marriage denied in another is one of “the most perplexing and distressing complication[s]” in the law of domestic relations. Williams v. North Carolina, 317 U. S. 287, 299 (1942) (internal quotation marks omitted). Leaving the current state of affairs in place would maintain and promote instability and uncertainty. For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages already have occurred—the disruption caused by the recognition bans is significant and ever-growing.

As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. See Tr. of Oral Arg. on Question 2, p. 44. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

* * *

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. The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.

TIME Ideas hosts the world's leading voices, providing commentary and expertise on the most compelling events in news, society, and culture. We welcome outside contributions. To submit a piece, email ideas@time.com.

TIME Web

Here’s What Happens If You Google ‘Gay Marriage’ Today

You get a very special search result

Google is celebrating the Supreme Court’s Friday ruling legalizing gay marriage across the U.S. Type “gay marriage” into the search engine and you’ll see a string of cartoon couples holding hands across the top of the screen with rainbow colors that represent the gay pride flag.

Screen Shot 2015-06-26 at 10.53.13 AM 1

It’s no surprise that Google is supporting gay marriage. The company launched a “Legalize Love” campaign in 2012 to combat anti-gay laws and publicly opposed a 2011 California bill that would have banned gay marriage in the state. Other tech giants have also pledged strong support for gay rights. Apple CEO Tim Cook came out publicly as gay last October and has spoken out against religious-freedom laws in several states that could allow businesses to discriminate against same-sex couples.

TIME White House

Obama Cites Progress at Gay-Pride Reception

President Obama takes pride all that his Administration has accomplished for the lesbian, gay, bisexual, transgender community. At a reception celebrating Pride Month at the White House on Wednesday, he listed off a series rights and protections the LGBT community has gained under his watch.

“Together, we ended ‘don’t ask, don’t tell.’ We passed a historic hate-crimes bill named in part after Matthew Shepard. We lifted the HIV entry ban, and this summer, we’re going to be updating our national HIV/AIDS strategy, which will focus on eliminating disparities that gay and bisexual men and transgender women face,” Obama said to bouts of raucous applause.

Under his tutelage, Obama said Wednesday, the Violence Against Women Act was expanded to protect LGBT victims and LGBT federal workers have gained protection against employment discrimination. As of Tuesday, he noted, federal workers’ insurance will no longer inhibit gender transitions.

Still the President couldn’t avoid the obvious. As soon as Thursday, the Supreme Court could issue a ruling that either guarantees that same-sex couples have a constitutional right to marriage or sends the state of same-sex marriages in some states into a tizzy. Most are confident that the Supreme Court will rule in favor of marriage equality, given the seismic shift the country has experienced on the issue. Whatever happens, Obama said, there’s no disputing that the social fabric of the country is more tightly woven around the rights of LGBT Americans.

“However the decision comes down on the marriage issue, one thing is undeniable — there has been this incredible shift in attitudes across the country,” he said.

“When I became President, same-sex marriage was legal in only two states. Today, it’s legal in 37 states and the District of Columbia,” he added. “A decade ago, politicians ran against LGBT rights. Today, they’re running towards them.”

Every year in June, Obama takes a moment to celebrate the LGBT community. And at nearly every Pride event, a political debate on issues surrounding the community has cast a shadow over the celebratory vibe. In 2009, Obama called for the repeal of “don’t ask don’t tell,” a charge he reiterated in 2010. From 2009 until 2011, Obama avoided explicitly saying whether or not he was in favor of same-sex marriage while calling for an end of the Defense of Marriage Act. The 2012 reception was the first event at which he formally expressed support for gay marriage. Every year, he’s called for a strengthening of laws that prohibit employment discrimination based on sexuality and gender identity.

And on Wednesday, as he has each year, Obama also acknowledged the work left to be done —i ncluding the long-stalled Employment Non-Discrimination Act.

“There are still battles to wage, more hearts and minds to change. As long as there’s a single child in America that’s afraid they won’t be accepted for who they are, we’ve got more work to do,” Obama said. “But if the people in this room and our friends and allies across the country have proven anything, it’s that even in the toughest of circumstances, against the greatest possible odds, in America, change is possible.”

TIME LGBT

How Gay Life in America Has Changed Over 50 Years

As Pride Month gets underway, a look at how LIFE covered gay communities in 1964

It was in June of 1969 that the Stonewall Riots took place following a police raid of the Stonewall Inn, a gay bar in New York City. That pivotal moment in the history of gay rights in America is commemorated each year, with June celebrated as LGBT Pride Month in the United States. With this year’s celebrations closely preceding the potentially momentous decision the Supreme Court will soon hand down on gay marriage, it’s an apt time to reflect on just how far LGBT rights have come over the last half-century.

In June of 1964, five years before Stonewall and nine years before the American Psychiatric Association removed homosexuality from its list of mental illnesses, LIFE Magazine published a photo essay called “Homosexuality in America.” With photos by Bill Eppridge, the essay explored the specific challenges faced by gay men in American cities, from regular arrests by police to constant pressure to hide their true identities.

The language used to describe the plight of gay men was not entirely sympathetic. Their world, largely defined as a world separate from mainstream American life, was “sad and sordid.” Those who chose to be open about their sexualities were said to be “openly admitting, even flaunting, their deviation.”

The attempt to classify a population with whom many Americans were unfamiliar led to generalizations (homosexuals prefer careers in “interior decorating, fashion design, hair styling, dance and theater”) and forced sexualized taxonomies (drag queens, S&M adherents, married fathers who purport to go around the block for the newspaper but are in fact seeking companionship from other men). The article’s tone would today be described as “othering,” an examination of “them” by “us.”

“For every obvious homosexual, there are probably nine nearly impossible to detect,” LIFE wrote, using the kind of language that might be wielded to describe Soviet spies. “The myth and misconception with which homosexuality has so long been clothed must be cleared away,” the article continued, “not to condone it but to cope with it.”

Decades before the first states began to legally recognize gay marriage, LIFE acknowledged a trend among gay men to live as though they were married:

There are also the “respectable” homosexuals who pair off and establish a “marriage,” often transitory but sometimes lasting for years. Unburdened by children and with two incomes, they often enjoy a standard of living they otherwise would not be able to attain.

LIFE’s examination of gay life in the mid-’60s is a product of its time. With its reliance on stereotypes and the sense of fear that doesn’t always remain between the lines, the article offers evidence of how much things have changed in 50 years. Change, of course, is incremental and ongoing—and the Supreme Court’s imminent decision as to the legality of same-sex marriages is proof of just that.

TIME Vatican

The Vatican Calls Ireland’s Vote for Same-Sex Marriage a ‘Defeat for Humanity’

Drag queen and gay rights activist Rory O'Neill, known by his stage name as Panti Bliss arrives at the Central Count Centre in Dublin Castle, Dublin on May 23, 2015
Brian Lawless—;PA Wire/Press Association Images Drag queen and gay-rights activist Rory O'Neill, known by his stage name Panti Bliss, arrives at the central count center at Dublin Castle, in Dublin on May 23, 2015

The remark is the most critical made by the church so far

Ireland’s recent referendum approving same-sex marriages has drawn sharp condemnation from a senior Vatican official, who described it as “a defeat for humanity,” the Guardian reports.

“I was deeply saddened by the result,” said the Vatican’s Secretary of State, Cardinal Pietro Parolin, on Tuesday. “The church must take account of this reality, but in the sense that it must strengthen its commitment to evangelization. I think that you cannot just talk of a defeat for Christian principles, but of a defeat for humanity.”

Parolin is regarded as the highest official in the church hierarchy after the Pope. His hard-line stance will be greeted with dismay by Catholics hoping for a softening in the church’s position on homosexuality. They come after the Vatican’s recent refusal to accept a gay Catholic, Laurent Stefanini, as France’s ambassador to the Holy See because of his sexuality, the Guardian reports, citing French and Italian media.

This month’s Irish referendum saw 62% of voters coming out in favor of marriage equality for gays and lesbians.

[Guardian]

TIME Supreme Court

The Man Whose Marriage Was Debated by the Supreme Court

Jim Obergefell, the plaintiff in the marriage equality case, speaks outside of the Supreme Court of the United States on April 28, 2015 in Washington.
Paul Morigi—Getty Images for HRC Jim Obergefell, the plaintiff in the marriage equality case, speaks outside of the Supreme Court of the United States on April 28, 2015 in Washington.

The sun rises behind Jim Obergefell as he stands below the Supreme Court steps early Tuesday, and it frames his head in a perfect halo.

To his surprise, he had managed to sleep — “for 3.5 hours, 3 hours more than I expected,” he says — before waking up at 4:30 a.m. to arrive at the court at 6:15. He recalled how the Capitol across the way, was pink and gray against the early blue sky, as he approached the courthouse. “As it started to get lighter, the white marble of the Supreme Court was just — it was kind of magical,” he says as he waits for the Court doors to open. “It really was.”

He shows me his wedding ring. It is two bands, his ring and his late husband John Arthur’s, fused together, with a channel cut inside to hold some of Arthur’s ashes, sealed in with gold. Arthur died in 2013 of Lou Gehrig’s disease — the same ALS illness that millions fought last summer via “ice-bucket challenges” — and Obergefell, who was raised Catholic, has been fighting ever since to be listed as his spouse on his death certificate. Ohio, where he and his late husband live, neither allows gay marriage nor recognizes marriages, like theirs, performed in other states.

In just a few hours, Obergefell would sit near the front of the country’s highest court, supported by his late husband’s aunt and alongside fellow plaintiffs from Michigan, Tennessee and Kentucky. Together, their cases, argued under Obergefell v. Hodges, asks what is perhaps this generation’s greatest civil rights question: do same-sex couples should have the Constitutional right to marry?

The Justices considered two questions over the two and a half hours the court was in session. First, does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? And second, does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was performed out-of-state?

None of the lawyer’s arguments on either side were particularly new, and neither were any of the justices’ questions. What made the case compelling was hearing the same old debate play out in the highest court of the land with so much at stake.

Justice Samuel Alito asked why allowing same-sex marriage wouldn’t lead to two men marrying two women. Justice Antonin Scalia wondered if clergy would be required to perform wedding ceremonies for unions to which they object. Chief Justice John Roberts asked if denying gay marriage was sexual discrimination. Justice Ruth Bader Ginsburg argued that the definition of marriage has already changed.

By the time the court emptied into the plaza outside, the warm midday sun had fully risen over hundreds of supporters and protesters awaited, some cheering, some yelling, others just there amid the signs and coffee cups that littered the ground like the end of a long day at the state fair.

Legal scholars will now pore over the transcript and the briefs, examine the merits and point out the flaws. But no matter the decision the Court hands down in two months, Obergefell matters most for the people, like Obergefell himself, that it represents. “Right now is what creates the urgency for the court to decide whether the states are denying people basic equality,” Mary L. Bonauto, the lawyer who argued for the right of same sex marriage at the Court, says.

Perhaps that’s why one moment, minutes before attorney Douglas Hallward-Driemeier finished his closing argument, meant the world to Obergefell himself. “Douglas mentioned my name and John’s name, and our marriage, and why we were there,” he says, his voice catching, ever so slightly. “That was when it all sunk in.”

Ohio may not recognize Obergefell’s marriage yet, but for a brief moment in the Supreme Court Tuesday, attention was paid.

TIME Supreme Court

The Supreme Court’s Conservatives Switch Sides in Gay Marriage Logic

Supreme Court Gay Marriage
Jose Luis Magana—AP Demonstrators stand in front of a rainbow flag of the Supreme Court in Washington on April 28, 2015.

Supreme Court justices met Tuesday for the second time in two years to debate the constitutionality of same-sex marriage bans. The case could lead to a decision that would outlaw the bans across the country this June

Should the Supreme Court take into account the opinions of the rest of the world when reading the Constitution? In the past, some conservative justices have argued it should not, but they seemed to take the opposite tack Tuesday when debating gay marriage.

“Do you know of any society, prior to the Netherlands in 2001, that permitted same-sex marriage?” Justice Antonin Scalia asked an attorney representing gay couples who wanted their marriages to be recognized. “You’re asking us to decide (whether to approve same-sex marriage) for this society when no other society until 2001 ever had it.”

Jumping off that question, Justice Samuel Alito noted that even though there have been cultures that “did not frown on homosexuality” — such as ancient Greece — they did not recognize same-sex marriage either.

And Chief Justice John Roberts talked about how limiting marriage to a man and a woman was “a universal aspect of marriage around the world.”

The implication was clear: Other countries haven’t recognized same-sex marriage, therefore the United States doesn’t need to either.

In the past, Scalia in particular has taken a dim view of that same logic when applied to other topics. In 2005, Justice Anthony Kennedy cited international law in a majority opinion which held that imposing the death penalty on Americans under the age of 18 was a violation of the Eighth Amendment’s ban on “cruel and unusual punishment.”

“The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court’s determination that the penalty is disproportionate punishment for offenders under 18,” he wrote in a footnote to Roper v. Simmons.

That inspired a sharp rebuke in a dissenting opinion from Scalia, who argued that the court should not “take guidance from the views of foreign courts and legislatures.”

“I do not believe that the meaning of our Eighth Amendment … should be determined by the subjective views of five Members of this Court and like-minded foreigners,” he wrote.

In politics, this kind of reversal is typically greeted with condemnation, catcalls of “flip flopping” and hypocrisy. But Eugene Volokh, a constitutional law professor at UCLA, said that it wouldn’t be fair to level the same accusations against the justices.

Oral arguments like Tuesday’s hearing are more freewheeling, he said. The justices aren’t necessarily laying out eternal principles as they are trying on different arguments for size, seeing what kind of reaction they got. Sometimes, like guests at a long-running dinner party, they’re just trying to needle each other or make something akin to an inside joke with each other.

Volokh noted that Kennedy, who is expected to be the swing vote in favor of gay marriage in this case, had cited a decision in the European Court of Human Rights and a committee report to the British Parliament in a 2003 decision overturning sodomy laws, a key precedent in this case.

“There might be a little bit of tweaking going on here,” he said. “In a way he’s saying, you were willing to look at international matters there, are you willing to look at them here now?”

There’s also a substantive case to be made. Conservative justices such as Scalia believe that the Constitution makes America unique and separates our legal traditions from the rest of the world, which means the opinions of other countries don’t matter when you’re interpreting, say, the Eighth Amendment, but they might matter if you were trying to show that there’s nothing prejudiced about banning gay marriage.

Still, the accusation of flip flops stings in politics for a reason. Supreme Court justices can argue for American exceptionalism one week and for following world opinion in another, but it won’t help them in the truly highest court in the land: the court of public opinion.

TIME Supreme Court

What’s at Stake as the Supreme Court Returns to Gay Marriage

Supreme Court Gay Marriage
Andrew Harnik—AP An American flag and a rainbow colored flag flies in front of the Supreme Court in Washington, April 27, 2015, as the Supreme Court is scheduled to hear arguments on the constitutionality of state bans on same-sex marriage on Tuesday.

The fight over gay marriage may be nearing an end

Just two years ago, the Supreme Court debated the constitutional implications of same-sex marriage. As it returned to the issue Tuesday, the underlying facts that it will take into consideration have changed substantially.

When the court heard arguments on two cases in March of 2013, gay marriage was still a live issue. Just 11 states recognized same-sex marriage, while a majority of Americans had only recently begun to tell pollsters that they approved.

Today, 37 states recognize gay marriage, many of which did so after federal judges took the logic of the Supreme Court’s previous rulings further. The trend toward acceptance has only solidified, reaching a record 61 percent of Americans in one recent poll.

The justices themselves have personally mirrored this trend, with liberal Justices Ruth Bader Ginsburg and Elena Kagan officiating at gay weddings since the last decision.

Court watchers predict that a slim majority of justices — led by swing vote Anthony Kennedy — will finish what they started two years ago, finding a way to get all 50 states to recognize gay marriage. The question, then, is how they will do so.

The case they are considering, Obergefell v. Hodges, is named for James Obergefell, who married his now-deceased partner in Maryland, where gay marriage is legal, but cannot have his marriage recognized in Ohio, where it is not.

The court has several options to resolve the case. The justices could narrowly decide that states such as Ohio have to recognize marriage certificates from beyond their borders as a matter of legislative courtesy. Or they could more broadly decide that marriage is a constitutional right that no state may deny to gays and lesbians, forcing even reluctant states to issue same-sex marriage licenses of their own.

As with any court decision, there are a myriad of options in between, including multiple conflicting and overlapping opinions signed by different justices. But the underlying question will remain whether laws singling out gays and lesbians for different treatment—say, by barring them from marrying—deserve extra scrutiny in the same way that laws singling out ethnic or religious minorities do.

On that question, the Supreme Court has managed so far to avoid an answer, pegging opinions that expanded the equality of gays and lesbians on different arguments. It may do so again, or the justices may take the first step toward broader recognition of gay rights.

Either way, the fight over gay marriage may be nearing an end, but the debate over gay rights continues.

TIME

Why Religious Freedom Bills Could Be Great for Gay Rights

Demonstrators gather to protest a controversial religious freedom bill recently signed by Governor Mike Pence, during a rally at Monument Circle in Indianapolis on March 28, 2015.
Nate Chute—Reuters Demonstrators gather to protest a controversial religious freedom bill recently signed by Governor Mike Pence, during a rally at Monument Circle in Indianapolis on March 28, 2015.

"Anyone involved in social change has often had to take something that looked pretty bleak and turn it into an opportunity"

Opponents of the religious freedom laws recently passed in Arkansas and Indiana criticized the measures as a license to discriminate against LGBT people, but the battle over the bills may come to benefit the very people who led the charge against them.

Suddenly, a community that has been unsuccessfully championing LGBT non-discrimination measures for decades has the nation’s attention. A civil rights movement needs an outraged public to enact reform, and this fight —from grassroots protests against the bills to disapproving tweets from Walmart executives—generated plenty of it. Gay rights advocates strategically used the showdown as a megaphone to decry the absence of discrimination protections for LGBT people in many states. While nearly 90% of people believe that it’s already illegal to discriminate against gay and transgender people, there are no such laws in the majority of the United States.

On Thursday, Indiana Gov. Mike Pence approved changes to the state’s newly passed religious freedom law that make it clear the measure can’t be used to discriminate, but his opponents are taking this opportunity to push for more—demanding that Indiana become not just the 20th state to pass a religious freedom act but also the 20th to pass comprehensive non-discrimination protections for LGBT residents.

“Anyone involved in social change has often had to take something that looked pretty bleak and turn it into an opportunity,” says Eliza Byard, executive director of the Gay, Lesbian & Straight Education Network (GLSEN). “And you better believe that everyone who believes in justice is going to keep making a way out of no way. And this is another one of those moments. Let’s let people know what the stakes really are.”

This silver lining may have already sparked change in Florida, where gay rights advocates have long been pushing a non-discrimination bill that would protect LGBT people in the realms of employment, housing and public accommodations. For nearly a decade, the bill has been filed each year without coming up for a vote, says Carlos Guillermo Smith of Equality Florida. His group has built a coalition of more than 300 businesses who support the measure—including prominent companies like Walt Disney World and the Miami Heat—but that hasn’t moved the needle. Now, in the wake of Indiana, Smith says it looks like the bill may finally get taken up by a committee next week.

“It’ll be the first hearing we have had on the issue, ever,” says Smith.

In Pennsylvania, advocates preparing to introduce a non-discrimination measure in the next two weeks have used the fallout in Indiana to highlight the potential economic costs to Republican lawmakers. Companies have halted expansion in the Hoosier State, lucrative conferences have threatened to convene elsewhere and recruiters tasked with luring executives to the area are worried about companies already there choosing to relocate.

“It’s the severity of the backlash,” says Equality Pennsylvania’s Ted Martin, “that really and truly serves as an example that discrimination is just not the way to move a state forward economically. I think the leadership in our capitol will pay attention to that.”

This is already the tack that many LGBT advocates have been taking, concentrating on the dollars-and-cents arguments instead of just acceptance-and-tolerance. In Florida, the non-discrimination bill is pointedly named the Florida Competitive Workforce Act, positioned as a way to attract the broadest range of the best talent. What’s happening in Indiana, Smith says, “is making the argument for us.”

Some worry that support for non-discrimination measures will be hard to drum up, partly because the realm of marriage equality has been a double-edged sword for LGBT Americans. As the Supreme Court appears poised to make same-sex marriage the law of the land, advocates are ready to celebrate securing a right with enormous emotional and practical importance. At the same time, says Kate Kendell, executive director of the National Center for Lesbian Rights, “The concern has always been that we might make the mistakes of every other civil rights or human rights struggle. Women win the right to vote and mistake that for full equality. Brown v. Board of Education rules that segregation is unlawful, and there’s a mistaken notion that somehow we’ve won the war on racism and bigotry.”

The fear, she says, is that casual supporters of gay rights would get the impression that the work is finished, brush off their hands, put away their pocketbooks and go home. “The notion that we’re done is something that we’re fighting,” Kendell told TIME in 2014. The fight in Indiana has made it clear that the war is not over. It has also demonstrated to the likes of Kendell that they have wells of support that are bigger than they realized, as everyone from the NCAA to Angie’s List balked at the law. “We have seen a cascade of support for basic, fair treatment for LGBT people in the public square that I could never have imagined,” Kendell says. “I want to bottle this lightning.”

While the national conversation has focused on the theoretical same-sex couple seeking a hypothetical cake from a traditionalist baker, Sarah McBride of the Center for American Progress, a liberal think tank, says that the controversy has been an opportunity to point out that the LGBT discrimination is not only real but that the vast majority is more “life-altering” than having to seek out a second pastry shop. “The economic numbers don’t lie,” she says, noting that LGBT Americans experience higher levels of poverty, homelessness and unemployment than the general population. A report she authored in 2014 found that 27% of LGBT people have experienced “inappropriate treatment” or hostility in a place of public accommodation like a shop or restaurant.

McBride says that another difficulty that comes along with wins for marriage equality is that there are more opportunities for discrimination. Heartened by court rulings, people are more willing to come out of the closet and may even be forced to effectively out themselves at work when, for the first time, they’re filling out paperwork to add a same-sex spouse to their health insurance policy. Those are opportunities to encounter backlash that didn’t exist before, she says. A favorite rhetorical example among such advocates is that in several states, a lesbian could now be married on Sunday and fired for being gay on Monday, left with only patchy and confusing legal recourse. “The confusion around the legal landscape needs to be clarified,” McBride says. “That’s why there needs to be a comprehensive federal response.”

Members of Congress have tried and failed to pass non-discrimination legislation that would protect LGBT people in employment nearly every session since 1994. In a “historic” 2013 vote, the Democrat-controlled Senate passed the Employment Non-Discrimination Act, or ENDA. Then the Republican-controlled House didn’t take it up. Oregon Sen. Jeff Merkley, a Democrat, said in late 2014 that rather than fight the same fight again, he plans to go bigger: introducing sweeping legislation that covers not only employment but housing and public accommodations. And the controversy over religious freedom restoration bills—which are still pending in six states beyond Indiana—may help jump start a measure that has stalled so many times. It will need a jolt for a GOP-controlled Congress to consider taking it up.

“Senator Merkley’s hope is that with the news out of Indiana and Arkansas we can finally get the support we need to get LGBT Americans the rights they deserve,” a spokesperson for Merkley tells TIME.

In some ways, fighting for marriage equality is an easier task for gay rights supporters than fighting for LGBT non-discrimination bills. Part of it is Americans’ widespread belief that those protections are already in place and confusion about what legal options LGBT people have if they’re fired from a job for being gay or transgender, while it has always been obvious and indisputable where same-sex marriage was not legal and what that meant. A lack of marriage rights is a straightforward issue, while discrimination isn’t always easy for outsiders to see, says Jenny Pizer of Lambda Legal. “Non-discrimination is proactive and not reactive,” Pizer says. “That is a different kind of social change process.”

But the religious freedom bills, which have been considered in more than a dozen states so far in 2015, could change that. McBride says such incendiary proposals may prove the “tangible” means of activating support for their cause, just like constitutional amendments banning same-sex marriage provided them a target at which to aim when fighting for marriage equality.

People like Smith will be watching closely to see whether backlash against the new religious freedom law is indeed enough to boomerang the state legislature beyond fixes to passing stand-alone non-discrimination legislation. That would be a telling lesson in a state run by a politician who once declared that he opposes “any effort to recognize homosexual’s [sic] as a discreet [sic] and insular minority’ entitled to the protection of anti-discrimination laws similar to those extended to women and ethnic minorities.”

“Their version of our bill is still in the works,” Smith says. “If we can’t even get that in Indiana, then I don’t know if we’ll be able to get it in Florida.” But if Smith’s team does get their hearing next week, you can count on them pointing a lot of fingers in a northwesterly direction.

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