America lives up to its promise of freedom and justice for all’, a man in the festive crowd shouts before the Supreme Court, after it has declared gay marriage legal for the whole country. The attendees will sing The Star-Spangled Banner, the national anthem. The land of the free and the home of the brave’, it sounds on the steps of the Court, a bit solemn as befits a great moment in history.
It is not only the legalization of same-sex marriage as such, but also the speed with which public opinion on such an important social change has tipped over the past few years. After a long history of discrimination against homosexuals and lesbians, things suddenly went very fast. In 2011, there were only six American states that recognised same-sex marriage. In four years’ time, this number has risen to 36. With its ruling, the Supreme Court is now closing the last gap: the remaining fourteen states must also allow same-sex marriage. Polls show that most Americans are in favour of it.
Two years ago, the Supreme Court was still reluctant to legalise the country. This hesitation was prompted by the ruling in 1973 by which the Court ruled from above that abortion would henceforth be permitted. Many states had great difficulty in doing so. To this day, they are doing everything they can to undermine the legalisation of abortion. It is one of the most important fronts in the lingering ‘culture wars’ between the right and the left.
In order to prevent same-sex marriage from being the same thing, a majority of the nine judges of the Court in 2013 still felt that this issue should primarily be dealt with by the states themselves. So from the bottom up, so that there would be a democratic basis. But after that, the acceptance of same-sex marriage went so fast that the Court was, as it were, overtaken by time. Strengthened by the fact that a large majority of the states have now accepted same-sex marriage, it gave way and announced a nationwide legalisation.
It was pretty close. Five judges were in favour, four against. Judge Anthony Kennedy, who is often on the edge of the progressive and conservative block, was the deciding factor. He had been the hope of the LGBT movement (lesbians, gays, bisexuals and transgenders) for years. He points out that proponents of same-sex marriage ask for ‘equal dignity before the law’. Kennedy: ‘The constitution gives them that right’. According to him, states may not prohibit same-sex marriage because of a provision in the Fourteenth Amendment of the constitution, which provides for equal protection.
All four conservative judges in the Court contest the majority opinion. Judge Antonin Scalia believes that the Supreme Court should not proclaim national legalisation. Today’s ruling says that I and 320 million Americans from coast to coast are governed by a majority of the nine judges of the Supreme Court. Judges who have not been elected. According to him, this threatens American democracy.