|Justice Anthony Kennedy who authored yesterday's historic ruling|
Tucked into yesterday's historic marriage ruling is a single word that may in time auger the ultimate total legal defeat of the Christofascists' war on LGBT Americans. The word? Immutable. Why is this so single word so important? Because it is the basis for non-discrimination protections based on other immutable characteristics such as race, gender, age, and national origin (unfortunately, religion is included in such statutory protections even though religion is totally voluntary and a choice). If sexual orientation or gender identity is immutable, it sets the stage for the expansion of non-discrimination laws and the Christofascist claims that sexual orientation is a "choice" or strictly voluntary "conduct." Think Progress looks at how this single word may have huge impact in the years to come. Here are excerpts:
[W]hile Friday’s decision is not a perfect victory for gay rights, it is still a massive one. And it likely clears the path for a follow up decision establishing that the rights of gay men, lesbians and bisexuals extend far beyond the marital context.
The single most important word in Justice Anthony Kennedy’s opinion for the Court is “immutable.” He uses this word twice, once in an off-hand statement that sexual orientation is an “immutable nature,” and again in a more pointed statement that “psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”
Kennedy’s declaration that sexual orientation is immutable has obvious political significance. It puts to bed, at least for legal purposes, what remains of the debate over whether people can choose not to be gay. But this word also carries particular significance in a case such as this one, where a discrete group of Americans allege that they are victims of discrimination. Though the Court’s cases have, at times, been murky on this point, they often refer to immutably as one of several factors that, when combined, can trigger heightened scrutiny. Kennedy’s decision to use this loaded word is a sign that he — and a majority of the Supreme Court — is willing to hold that all anti-gay discrimination by government should be treated skeptically.
Obergefell drops other hints that such a holding is coming. The primary factor in determining whether discrimination against a particular group should be subject to heightened scrutiny is whether that group has historically faced discrimination that bears “no relation to ability to perform or contribute to society.” Kennedy leaves little doubt that gay people meet this standard.
A close runner-up in the competition for the single most important word in Kennedy’s opinion is “fundamental.” Obergefell holds that marriage is a fundamental right, and that this right extends to same sex couples.
This holding is significant for two reasons. For one, it normalizes the Supreme Court’s gay rights jurisprudence. . . . . When a right is recognized as fundamental, any law that abridges it must be treated as preemptively unconstitutional.
Another noteworthy aspect of the ruling is recognized:
Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion. The men and women behind this lawsuit, Kennedy writes, seek admission into one of the most profound and most conservative institutions in our society. According to Kennedy’s opinion, “marriage is a keystone of our social order.” It is “the foundation of the family and of society, without which there would be neither civilization nor progress.” It gives “character to our whole civil polity.” And it “remains a building block of our national community.”
And when Kennedy looks at men and women such as DeKoe, Kostura, Obergefell, Arthur, DeBoer and Rowse, and he does not see people trying to disrupt the social order. He sees people who served their country, who take in children that others cast aside. He sees the life he has enjoyed with his own wife, and he understands how soul-crushing it would be if the state treated his wife as if she were a stranger to him.
Yesterday was a huge victory for LGBT Americans. It may prove to be an even bigger defeat for the Christofascists and the hate dispensing "family values" groups who as a further aside may have just lost one of their biggest fundraising schemes.