The Triumph of Gay Marriage and the Failure of Constitutional Law

Writing in these pages more than four decades ago, Harry Kalven, Jr. referred to the Supreme Court’s decision in New York Times v Sullivan as “an occasion for dancing in the streets.” Contemporary news accounts fail to indicate that anyone actually took advantage of the occasion. In contrast, there was actual dancing, in the streets among many other places, when the Court announced its decision in Obergefell v Hodges. The Court’s much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It vindicated the courageous leaders who struggled for years on behalf of an unjustly despised, ridiculed, and persecuted minority. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate. But although the Chief Justice thought that advocates of gay marriage should “by all means celebrate today’s decision,” he admonished them ““not [to] celebrate the Constitution.” The Constitution, he said, “had nothing to do with it.