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the First Amendment protects individuals’ disapproval of ho-
mosexuality for religious or other reasons, but stressed that this
disapproval does not minimize the humanity of those so dispar-
aged. Consequently, denying marriage equality “works a grave
and continuing harm. The imposition of this disability on gays
and lesbians serves to disrespect and subordinate them. ... It
would disparage their choices and diminish their personhood to
deny them this right.”
Adopting a zero-sum perspective, dissenting Justice Alito
worried that the stigma the Court majority lifted from GLBT peo-
ple would now fall on opponents of gay equality. He warned that
Obergefell
“will be used to vilify Americans who are unwilling
to assent to the new orthodoxy.” Underscoring his fear, he “as-
sume[s] that those who cling to old beliefs will be able to whis-
per their thoughts in the recesses of their homes, but if they repeat
those views in public, they will risk being labeled as bigots.”
For judges like Scalia and Alito,
Obergefell
represents the
world turned upside down. They are horrified that disparage-
ment of homosexuality, for so long accepted as the norm both
culturally and legally, could be the minority position, while ho-
mophobia will be frowned upon. They have nothing to fear.
Only when hatred is considered the natural order of things does
equality seem like a loss of freedom for anyone.
Don Gorton is an attorney and activist based in Boston.
Obergefell
Ruling Goes Beyond Gay Marriage
D
ON
G
ORTON
T
HE RECENT DECISION of the United States Supreme
Court in
Obergefell v. Hodges
, recognizing a constitu-
tional right to same-sex marriage, stands as a milestone
in GLBT history on a scale with the 1969 Stonewall Riots. The
contrast between 1969 and 2015 demonstrates how epic the in-
tervening 46 years have been. Over a short time in historical
terms, we have progressed from explicit denial to definitive
recognition of our equal dignity as human beings.
Beyond the strictly legal arguments about equal protection
and due process, what the Court recognized once and for all is
the essential humanity of people regardless of their sexual ori-
entation. This came as a nail in the coffin of Justice Antonin
Scalia’s position going back to
Lawrence v. Texas
, where he ac-
knowledged that the ultimate justification for anti-gay discrim-
ination is not a legal one but only society’s condemnation of
homosexuality. This he deemed a sufficient basis for upholding
anti-gay legislation such as pre-
Lawrence
anti-sodomy laws. In
contrast, in
Obergefell
Justice Kennedy argued that under such
laws “many persons did not deem homosexuals to have dignity
in their own distinct identity.”
Justice Kennedy’s opinion for the
Obergefell
majority rec-
ognized constitutional liberty and equal protection interests
trammeled by the denial of equal marriage. The Court noted that
GUEST OPINION
September–October 2015
5
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