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A Legal View Of The High Court's Ruling On Same-Sex Marriage

DAVID GREENE, HOST:

I'm David Greene with more on a landmark decision this morning from the U.S. Supreme Court. A divided court - in a 5-4 ruling, the court has allowed same-sex marriage across all 50 states in this country. We're joined now by Professor Samuel Bagenstos from the University of Michigan Law School. He's also the former deputy attorney general for civil rights in the Obama administration. Professor, good morning to you.

SAMUEL BAGENSTOS: Good morning.

GREENE: You know, we're talking about this a lot on our air. It's possible, I'm sure, that some of our listeners are just tuning in and hearing about this. Remind us, if you can, what exactly the court decided this morning because there were some different ways that they could've gone on this case.

BAGENSTOS: Yeah. So what the court decided this morning is that the Constitution prohibits a state from refusing to allow two partners of the same sex to get married. The court said that it's a matter of basic individual dignity and autonomy, that if you're allowing opposite-sex couples to get married, you also have to allow same-sex couples to get married.

GREENE: So to make it a constitutional issue like that, I mean, that's a pretty clear ruling on one of the most, you know, prominent cultural questions of our day and one of the most important civil rights questions of our day.

BAGENSTOS: Yes, yes, I think it's a very strong ruling. It's a very clear ruling, and, it, you know, there were, as you said, there were many ways the court could've gone, but I think this is - the way the court went was to state a very firm and strong position in favor of the right to equal marriage.

GREENE: There were four dissenters whose language, in some cases, as lofty and forceful as the majority, particularly from Justice Antonin Scalia. Remind us about the argument that they made in these dissents.

BAGENSTOS: Well, yes, I mean Justice Scalia was particularly bombastic. I mean, he used words like pretentious and egotistical to describe Justice Kennedy's majority opinion. The basic argument that the dissenters made was that this isn't a matter to be resolved by the Constitution, that it's a matter to be resolved by democratic processes - that we have a debate going on and the courts shouldn't short-circuit that. What Justice Kennedy said in his majority opinion was, you know, we have a Constitution to protect people against having their fundamental rights being violated by democratic processes, and so to say to people who are suffering indignities now because of a violation of their rights that they should wait for the resolution of a democratic debate is not really what our Constitution's about.

GREENE: I'm just thinking about all sorts of scenarios here and a lot of the legal questions going forward. If you work for a state government, let's say, and because of your religion or something else you're not comfortable with same-sex marriage. Are there ways that you might challenge sort of what you are forced to do and perform as an official in court?

BAGENSTOS: Well, I think there's - you know, there's nothing in this opinion that says anything about how a state needs to resolve those kinds of questions. You know, I think it may well be that if you are a person who takes a position as a magistrate or some other kind of public position where your job is to certify marriages for the state and you don't feel like you in good conscience can certify some of those marriages, I think it would be totally appropriate for a state to say, yeah, maybe this isn't the job for you. If you don't feel like you can certify an interracial marriage, we don't want you being a magistrate. Why is this any different? On the other hand, I think a lot of states will work out appropriately ways of accommodating relatively lower-level employees where there are other employees around who can do the same thing, but I think that's really a matter that the states are going to have to figure out for themselves.

GREENE: OK. We've been speaking with Professor Samuel Bagenstos, a professor of law at the University of Michigan Law School - also former deputy attorney general for civil rights under the President Obama. Professor, thanks so much for taking the time this morning. We appreciate it.

BAGENSTOS: Thank you. Yeah.

GREENE: And just to repeat the news this morning, a landmark decision from the U.S. Supreme Court, ruling 5-4 that same-sex marriage is legal across the United States of America. This is NPR News. Transcript provided by NPR, Copyright NPR.