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Drawing very different lessons from landmark same-sex ruling

Students in Maryland Sen. Jamin B. “Jamie” Raskin’s constitutional-law class this fall would be well advised to add Obergefell v. Hodges to their summer reading list.

“This should be the first decision I assign,” Raskin said of the U.S. Supreme Court’s landmark ruling Friday that same-sex couples have a constitutional right to marry.

Raskin, a professor at American University’s Washington College of Law, said the high court’s decision is notable not only for the exemplary, landmark opinion of Justice Anthony M. Kennedy but for the venomous written dissent by Justice Antonin Scalia.

Kennedy’s opinion for the five-member majority has “a tight, logical structure” that explains why same-sex couples have the same fundamental right to marry as heterosexual couples and why depriving gays and lesbians of that right violates the Equal Protection Clause of the Constitution’s 14th Amendment, said Raskin, adding that he strongly agrees with the court’s decision.

Scalia’s dissent, which said same-sex marriage should be left to state legislatures, “borders on just being an ad hominem attack on his colleagues,” said Raskin, a Montgomery County Democrat.

But former Maryland Del. Michael D. Smigiel Sr. said Scalia’s dissent was the legally sound opinion while Kennedy misinterpreted the Constitution.

“I’m not sure I agree with the Supreme Court and its reasoning,” said Smigiel, an Elkton lawyer.

He said recognition of same-sex marriage should be left to the states under the 10th Amendment, which provides that any powers not delegated to the federal government are reserved to the states.

“Everyone has a fundamental right to love who they choose to love, but can the state be forced to recognize that?” said Smigiel, “To say that every state has to put this into effect is a great blow to the 10th amendment and state’s rights.”

Raskin and Smigiel are no strangers to legislative debates on same-sex marriage.

They both strongly voiced their opposing views as a bill to permit gays and lesbians to lawfully wed in Maryland came before the General Assembly in 2011 and 2012. The measure, which passed the Senate but died in the House in 2011, won General Assembly approval in 2012 and went into effect on Jan. 1, 2013.

Raskin led the Senate floor debate for the bill in 2011 and 2012, making the same fundamental and equal-protection rights arguments adopted in Kennedy’s opinion.

“The states have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order,” Kennedy wrote.

“As the state itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects,” he added. “It demeans gays and lesbians for the state to lock them out of a central institution of the nation’s society. Same sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”

Raskin said he admired not only the content of Kennedy’s opinion but its “logical syllogism” and that the justice “shied away from some of the more souring flights of rhetorical fancy.”

By contrast, Raskin — a frequent critic of Scalia — called the justice’s dissent “an absolute embarrassment” in its attack on Kennedy and the other justices in the majority: Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor. Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. also dissented in the case.

“They [in the majority] are certain that the people ratified the 14th Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment,’” Scalia wrote in the dissent, which Justice Clarence Thomas joined.

“Those justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago [when the Netherlands approved same-sex marriage], cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”


But Smigiel, an Upper Shore Republican, said he agrees with Scalia that “the court is somewhat overreaching in its interpretation” of the Constitution. To find a fundamental right to same-sex marriage in the federal Constitution “would mean that every state since the inception or our country has been wrong,” said Smigiel, adding that he accepts the court’s decision.

“The issue is settled and we’re going to have to see how it shakes out,” he said.