This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians.
Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the
state itself in most Western nations, a belief often embodied in the criminal law. For this reason,
among others, many persons did not deem homosexuals to have dignity in their own distinct
identity. A truthful declaration by same-sex couples of what was in their hearts had to remain
unspoken. Even when a greater awareness of the humanity and integrity of homosexual
persons came in the period after World War II, the argument that gays and lesbians had a
just claim to dignity was in conflict with both law and widespread social conventions.
Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most
government employment, barred from military service, excluded under immigration laws,
targeted by police, and burdened in their rights to associate. See Brief for Organization of
American Historians as Amicus Curiae .
From their beginning to their most recent page, the annals of human history reveal the
transcendent importance of marriage. The lifelong union of a man and a woman always has
promised nobility and dignity to all persons, without regard to their station in life. Marriage is
sacred to those who live by their religions and offers unique fulfillment to those who find
meaning in the secular realm. Its dynamic allows two people to find a life that could not be
found alone, for a marriage becomes greater than just the two persons. Rising from the most
basic human needs, marriage is essential to our most profound hopes and aspirations.
There may be an initial inclination in these cases to proceed with caution—to await further
legislation, litigation, and debate. The respondents warn there has been insufficient
democratic discourse before deciding an issue so basic as the definition of marriage. In its
ruling on the cases now before this Court, the majority opinion for the Court of Appeals
made a cogent argument that it would be appropriate for the respondents’ States to await
further public discussion and political measures before licensing same-sex marriages. Yet
there has been far more deliberation than this argument acknowledges. There have been
referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers,
books, and other popular and scholarly writings. There has been extensive litigation in state
and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been
informed by the contentions of parties and counsel, which, in turn, reflect the more general,
societal discussion of same-sex marriage and its meaning that has occurred over the past
decades. As more than 100 amici make clear in their filings, many of the central institutions
in American life—state and local governments, the military, large and small businesses, labor
unions, religious organizations, law enforcement, civic groups, professional organizations, and
universities— have devoted substantial attention to the question. This has led to an enhanced
understanding of the issue—an understanding reflected in the arguments now presented 24
OBERGEFELL v. HODGES Opinion of the Court for resolution as a matter of constitutional law.
Of course, the Constitution contemplates that democracy is the appropriate process for
change, so long as that process does not abridge fundamental rights. Last Term, a plurality
of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN,
noting the “right of citizens to debate so they can learn and decide and then, through the
political process, act in concert to try to shape the course of their own times.”. Indeed, it is
most often through democracy that liberty is preserved and protected in our lives. But as
Schuette also said, “he freedom secured by the Constitution consists, in one of its essential
dimensions, of the right of the individual not to be injured by the unlawful exercise of
governmental power.” Thus, when the rights of persons are violated, “the Constitution
requires redress by the courts,” notwithstanding the more general value of democratic
decision making. Id. This holds true even when protecting individual rights affects issues of
the utmost importance and sensitivity. The dynamic of our constitutional system is that
individuals need not await legislative action before asserting a fundamental right. The Nation’s
courts are open to injured individuals who come to them to vindicate their own direct,
personal stake in our basic charter. An individual can invoke a right to constitutional
protection when he or she is harmed, even if the broader public disagrees and even if the
legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied by the courts.” West Virginia
Bd. of Ed. v. Barnette (1943). This is why “fundamental rights may not be submitted to a vote;
they depend on the outcome of no elections.” Ibid. Cite as: 576 U. S. ____ (2015) 25 Opinion
of the Court It is of no moment whether advocates of same-sex marriage now enjoy or lack
momentum in the democratic process. The issue before the Court here is the legal question
whether the Constitution protects the right of same sex couples to marry. This is not the first
time the Court has been asked to adopt a cautious approach to recognizing and protecting
fundamental rights. In Bowers, a bare majority upheld a law criminalizing same-sex intimacy.