The United States Supreme Court decided two landmark cases this past week. One affirmed subsidies for Americans purchasing health care insurance on a federal exchange. In a second case, Obergefell v. Hodges, the court, after refusing to hear earlier cases, declared same-sex marriage to be a right guaranteed under the Constitution, by expanding the penumbra of a constitutional right to gay couples.
A "penumbra" is a body of rights held to be guaranteed by implication in a civil constitution. The Constitution says nothing about marriage. Even so, Justice Anthony Kennedy, in his majority opinion, instructed what marriage is about. He stated that gay men and women respect the idea of marriage and that they want it for themselves, and so the court made same-sex marriage legal in all states.
Professor John Stanga, a late Wichita State political science colleague of mine and a scholar on Constitutional law and judicial decision making, always said that the Constitution is what the United States Supreme Court says it is.
The Supreme Court also responds to the political environment in which it operates. Since 2005, there has been growing support across generations for same-sex marriage, with 73 percent of those born after 1980 and 59 percent of those born between 1965 and 1980 giving their approval. In addition, more states also began to recognize same-sex marriage.
The Court’s Roe v. Wade decision on abortion in 1973 continues to be politically controversial. I think that the decision on same-sex marriage will be equally enduring as a highly controversial issue in religious organizations and in election campaigns for the foreseeable future. I predict, too, that the court’s decision on same-sex marriage, at least initially, will redound to the electoral benefit of more conservative candidates taking issue with the decision.