on writ of certiorari to
the court of appeals

June 26, 2013

(Justice Kennedy delivered the opinion of the Court.)

The jurisprudence of liberty is a bright and shining star.  Its twinkling arc across the sky of our constitutional polity signals the nation’s fundamental commitment to the dignity of the individual.  Liberty is the right of the individual to construct his own character and personality, as well as the meaning of the universe.  So understood, liberty is not hidebound.  Bequeathed to us as a timeless memorial to the full flowering of liberty, the Constitution forbids discrimination against bisexuals in the form of statutes banning group marriage.


The present case involves the aspirations of three individuals, one man and two women.  The man is a member of the monosexual majority—which is to say, a heterosexual—and the two women are bisexuals.  The three of them wish to get married.  The Court of Appeals ruled that they should be allowed to do so in light of our decision in Elton John v. Texas, in which we held that homosexual couples have a right to civil marriage.  There, as the Court of Appeals noted, we said that

Liberty and its venerable twin, equality, burst asunder the restrictive carapaces of traditional thinking about marriage and sexuality.  The 14th Amendment is simply incompatible with the tradition-based practice in which marriage is defined in exclusionary terms as the union of one man and one woman.

Because Elton John is the immediate precursor of today’s decision, we briefly recount the facts in that case.  Elton John, the pop singer, was married to his partner in Bemidji in a lavish ceremony that was televised live around the world.  The state of Minnesota, which does not require couples to establish residency before being issued marriage licenses, duly recognized the couple’s marriage.  After the Minnesota Supreme Court struck down traditional marriage, cities throughout the state of Minnesota performed many rites of connubial bliss for out-of-state homosexual couples.  Elton John and his betrothed, Alfred “Tex” Richards of Houston, Texas, were among them.  After a lengthy honeymoon, which included being fêted in Hollywood, the couple returned to Houston—where Tex but not Elton John lived—and petitioned for the recognition of their marriage license that was granted in the state of Minnesota.

Texas refused to recognize the marriage—a refusal that was subsequently immortalized in a hit song by Elton John—and the couple sued.  In due course, the case arrived on the docket of this Court.  After careful consideration, and amid the predictable protests, we ruled that the long-standing Texas statute restricting marriage to the union of one man and one woman placed an “undue discriminatory burden” on the sexual freedom of homosexuals, in violation of the 14th Amendment.  Because group marriage is to bisexuals what same-sex marriage is to homosexuals, we affirm that the right of civil marriage recognized in Elton John applies to bisexuals and entitles them to civilly recognized group marriages.  We now explain our reasoning more fully.


In a seminal work on the “deep meaning” of the Constitution, Laurence Tribe writes:

To say that “it’s not the anatomy, it’s the relationship”—in the words of a now legendary retort to Justice Scalia—is only to say what we have always known, even if we did not want to admit it: Sexual-orientational privileging is per se discriminatory.  That is what “queering the Constitution” means and has always meant.

While we do not make a judgment today about any project of “queering” the Constitution, we fully agree with Professor Tribe—the most clairvoyant constitutional scholar of the age and a mentor to this Court—that traditionalist modes of sexual orientation and anatomical configuration may not be constitutionally privileged.

In that light, the trajectory of this Court’s doctrine of sexual freedom is clear and inescapable.  In Griswold v. Connecticut, we made plain that married couples possess sexual freedom in the privacy of their bedrooms.  Several years later, in Eisenstadt v. Baird, we extended that vital insight to unmarried couples.  Then, in Roe v. Wade, we affirmed the right of women to remove impediments to sexual freedom, such as pregnancy.  In Planned Parenthood v. Casey, we made clear that the importance of equal sexual freedom for men and women alike is enough to quell doubts about the morality of removing impediments to sexual freedom when they involve, as unfortunately they must, the practice of killing the unborn.  And in Lawrence v. Texas, we all but named this right, which was only hinted at in our previous decisions.  In Lawrence, we framed the right of sexual freedom in terms of equality as well as liberty, holding that homosexuals are not to be stigmatized on the basis of controversial moral beliefs.  A few years later, in Elton John v. Texas, we held that the right of sexual freedom necessarily includes civil marriage for homosexual couples.  Finally, today, we extend this selfsame right to bisexuals.

Justice Scalia descried the “noxious nexus” between same-sex marriage and polyamorous group marriage in his Elton John dissent.  “Once same-sex marriage is constitutionally recognized,” our brother wrote, “it is just a matter of time before bisexuals demand that we endow them with the same rights that homosexuals have—which, in the case of bisexuals, means a right to group marriage.”  In Elton John, we did not address this claim.  But while we neither confirmed nor denied it then, we confirm it now.  Can it really be that Justice Scalia and his fellow dissenters want us to roll back the clock on constitutional rights, denying to homosexuals by parity of reasoning what the dissenters think should be denied to bisexuals?

Bisexuals, of course, are by definition doubly complementary.  A bisexual marriage must consist of at least two bisexuals and one other gender-complementary person, who may be either monosexual or bisexual.  Our decision today, however, has no direct relevance to the prospect of unlimited group marriage.  Today’s decision involves only limited group marriage, which we define for constitutional purposes as consisting of at least three but no more than four spouses, with no more than one of those spouses being a monosexual.

Several amicus briefs, and our dissenting brethren as well, argue that there is no logical difference between limited and unlimited group marriage.  Perhaps, perhaps not.  In time, the truth will emerge as, with the aid of this Court, society throws off more and more shackles of tradition and restraint, discrimination and domination.  In the meantime, we ask Justice Scalia to stop describing the ongoing advance in our constitutional understanding of sexual freedom as “the Harrad Experiment.”  The novelty of what we do today is in no way distinguishable from the novelty, in 1954, of Brown v. Board of Education.

It is not necessary to rebut, point by point, Justice Scalia’s various facets of facetiousness, such as his claim that our main concern is to “be the mighty herald of ‘immediate, ecstatic, and penetrating modes of living’” or to “immanentize the liberal eschaton.”  One or two points we cannot avoid mentioning, however.  First, we decline to address the question of whether today’s decision will give rise to an “army of counterfeit bisexuals looking for free kicks and governmental patronage,” as Justice Scalia puts it.

Second, in his Lawrence dissent, Justice Scalia responded, “Do not believe it,” to our declaration that Lawrence had nothing to do with same-sex marriage.  Today, he says: “If I could collect royalties for being right, I would be a wealthy man.”  This is no time for jesting.  Justice Scalia stands for the proposition that bisexuals are second-class citizens who should not be allowed to marry one another in a meaningful way.  He would give aid and succor to the forces of reaction and unthoughtfulness.  We cannot share his pose of levity, for we are conscious of our grave responsibility in protecting the liberty of all.

In the soon-to-be-famous conclusion of his dissent, Justice Scalia sums up our thinking today with the questionable honorific “idiotized.”  This time, we fear, Justice Scalia has ridden his hobby horse a furlong too far.  We demand respect from Justice Scalia, not only for ourselves but for all whom we protect.  Not for long will we continue to tolerate antique sarcasm and benighted attitudes within this Court.

Justice Scalia was not correct about the jurisprudence of liberty in Casey, Lawrence, and Elton John, and he is not correct about the jurisprudence of liberty today.  He should not be listened to.  Justice Antonin Scalia should be and now is officially rebuked.


When the “dynamo” of sexual freedom collides with the “virgin” of traditional morality, it is clear which one must give way.  The passive virgin of traditional morality cannot be the exemplar of the jurisprudence of liberty.  Who would have guessed that the 14th Amendment contains intimations of intimacy that, upon being finally perceived by this Court, validate group marriage?  And yet, that is the constitutional juncture at which we have now arrived.  In affirming the decision of the Court of Appeals, today we make history as well as merely follow its inevitable path.  In no way do we deny the dignity of marriage and its social importance.  To the contrary, with today’s decision, we reinforce rather than undermine that noble institution.

Should there be any doubt about the legitimacy of the decision we make today, we urge citizens to heed the careful reasoning of the plurality opinion in Planned Parenthood v. Casey, in which we clearly explained our paramount role and exemplary authority within the American polity.  As widespread as may be the unthoughtful part of the nation, we are confident that most citizens will heed today’s call to constitutional clarity and rally around their constitutional protectors.  To them, we say: Ask not what your Supreme Court can do for you; ask what you can do for your Supreme Court.

If the right of marriage means anything, it is the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to practice monosexuality or bisexuality.  In striking down the remnants of past understandings of marriage, we decide only that the Constitution does not permit society to turn hidebound conceptions of monogamy into a ritualistic fetish.  Legislation that prevents bisexuals from being joined in group marriage, with or without the inclusion of one monosexual, is unconstitutional.  Proceedings consistent with this decision must be undertaken by the appropriate authorities within 90 days.

It is so ordered.