WASHINGTON — When Justice Anthony Kennedy took the bench Friday at the Supreme Court, some were thinking about his past decisions and other June 26ths.
A dozen years ago, on June 26, 2003, Kennedy announced the court’s decision in Lawrence v. Texas, which struck down state laws that made engaging in gay sex a crime. On June 26, 2013, Kennedy read the decision in United States v. Windsor, the decision that gave federal benefits to legally married same-sex couples.
On Friday, the 78-year-old justice began reading another much-anticipated ruling.
“Since the dawn of history, marriage has transformed strangers into relatives,” he told a courtroom dotted with plaintiffs from the case, lawyers who have pushed for gay rights and others touched by the decision.
Kennedy glanced up at his audience, including retired justice John Paul Stevens, as he read. Though he began by tracing the history of marriage as the union of one man and one woman, it quickly became clear that his decision would extend the right to marry to gay and lesbian couples.
“The past alone does not rule the present,” he said. And of the 2003 Lawrence decision, he said: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”
By five minutes in, when he got to the phrase the “right of same-sex couples to marry” some in the audience were trying to hold back tears, their faces contorting. Others cried silently and wiped away tears. Low sniffles could be heard, and some grabbed seatmates’ hands.
“No union is more profound than marriage,” Kennedy said near the end of his almost 10-minute reading.
“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.”
But he wouldn’t have the last word.
Chief Justice John Roberts, sitting next to Kennedy, sat forward to read a dissent aloud for the first time in his nearly 10 years on the court.
Just a day earlier, it was Roberts and the liberal justices on the court who were on the receiving end of an angry oral dissent from Justice Antonin Scalia, who accused the majority of doing somersaults to make the words of President Barack Obama‘s health care law work.
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“Just who do we think we are?” he said near the beginning of his 10-minute reading. “I have no choice but to dissent.”
Roberts criticized the ruling as neither “cautious” nor “restrained.” He said the most serious problem with the majority’s opinion was its disrespect for the democratic process.
His fireworks over, Roberts announced that Scalia, too, had an opinion to read, in a separate case about repeat violent offenders.
“Don’t go away,” Scalia deadpanned.
The audience laughed.
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