Does the Fourteenth Amendment require states to license or recognize same-sex marriages performed out-of-state?
The Supreme Court will rule on whether the Fourteenth Amendment requires states to recognize same-sex marriages lawfully performed out-of-state and to grant same-sex marriage licenses. Regarding the first issue, Petitioner James Obergefell argues that the Court’s 2013 ruling in United States v. Windsor invalidates Ohio’s marriage-recognition laws, which Obergefell claims disadvantage and overburden same-sex couples and their families. Obergefell’s arguments regarding this issue are generally representative of those brought forth by the Petitioners in consolidated cases Tanco v. Haslam and Bourge v. Beshear. However, Respondent Richard Hodges—whose position generally aligns with the various Respondents in the consolidated cases Tanco v. Haslam and Bourge v. Beshear—counters that the Windsor Court did not interpret the Fourteenth Amendment to contemplate a “freestanding marriage-recognition right” and argues that a recognition right would undermine the democratic processes that led to the current legislation. On the second issue, Petitioner Deboer—from the consolidated case Deboer v. Snyder—argues that Due Process and the Equal Protection Clauses of the Constitution require that states license same-sex marriage, and compels the Court to rule on this issue. The Respondent in Deboer, Governor Snyder, argues that nothing in the Fourteenth Amendment’s history or plain text meaning requires states to license same-sex marriage, nor does it compel the Court to rule on the issue. The Court’s ruling in these cases may affect the legal rights of children of same-sex couples, the rights of people who identify as gay, and the states’ sovereign right to enact legislation that defines the status of same-sex marriages within their borders.
Questions as Framed for the Court by the Parties
- Does the Fourteenth Amendment require a State to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a State to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
For twenty-two years, Petitioner James Obergefell and his late partner, John Arthur, lived together in a committed relationship in Cincinnati, Ohio until Arthur’s passing on October 22, 2013. On July 11, 2013, after John Arthur was diagnosed with amyotrophic lateral sclerosis (“ALS”)—a fatal and incurable disease that caused Arthur significant muscle deterioration—the couple traveled to Anne Arundel County, Maryland on a special jet equipped with medical devices that catered to Arthur’s medical condition. Obergefell and Arthur married inside of the jet as it was parked on a Maryland tarmac. That same day, the newly married couple returned to Cincinnati, Ohio. In 2013, Obergefell and Arthur’s same-sex marriage was legally recognized in Maryland and by the federal government as confirmed by the United States Supreme Court in United States v. Windsor. However, Ohio state laws—Ohio Rev. Code § 3101.01 (C)(2), Ohio Rev. Code § 3101.01 (C)(3), and Ohio Constitution Art. XV, § 11—forbids same-sex marriage. Following Arthur’s passing, and in accordance with Ohio law, Arthur’s death record (1) failed to record Obergefell as Arthur’s “surviving spouse” and (2) listed Arthur as “unmarried” at the time of his death.
In 2013, Obergefell filed suit in the United States District Court for the Southern District of Ohio (“district court”) against Respondent Richard Hodges, Director of the Ohio Department of Health. Obergefell argued that Ohio laws that failed to recognize out-of-state same-sex marriages were unconstitutional and asked that the Registrar of Ohio issue death certificates recording Obergefell as Arthur’s “surviving spouse” and listing John Arthur as “married” at the time of death. The district court ruled in favor of Obergefell, granting Obergefell’s motion for a temporary restraining order and ordering that the local Ohio Registrar of death certificates reject a death certificate for Arthur that fails to record Arthur’s marital status as “married” and list Obergefell as his “surviving spouse” at the time of death. The district court reasoned that the Fourteenth Amendment protects a “fundamental right to keep existing marital relationships intact” and that Ohio failed to satisfactorily justify its refusal to recognize same-sex marriage under both a heightened intermediate scrutiny review and a less rigorous rational basis review.
On appeal, the United States Court of Appeals for the Sixth Circuit reversed the district court ruling, holding that a state’s decision to restrict marriage to a man and a woman does not violate a same-sex couple’s constitutional rights and that a state’s refusal to recognize a same-sex marriage performed out-of-state does not violate Fourteenth Amendment due process and equal protection rights.
On January 16, 2015, the United States Supreme Court granted certiorari—consolidating this case with Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear—to determine whether the Fourteenth Amendment requires a state to (1) recognize lawfully licensed same-sex marriages performed out-of-state and (2) grant same-sex marriage licenses.
The Supreme Court will contemplate whether the Fourteenth Amendment requires a state to recognize lawfully licensed, out-of-state same-sex marriage. Though only one of the consolidated cases, Obergefell’s and Hodges’ arguments are representative of the general views, advocated by the parties in Tanco v. Haslam and Bourge v. Beshear, regarding their respective state’s laws that do not recognize out-of-state same-sex marriage licenses. Obergefell contends that Hodges cannot defend Ohio’s marriage-recognition laws under United States v. Windsor or under the applicable heightened scrutiny standard. However, Hodges counters that the Windsor ruling permits Ohio’s decision not to license out-of-state marriages and protects various rationales, such as local democracy.
Additionally, the Supreme Court may decide whether the Fourteenth Amendment requires states to grant same-sex marriage licenses. Deboer, Petitioner in Deboer v. Snyder (consolidated with the other cases), argues that the Constitution demands that the Court require states to license same-sex marriage under principles of due process and equal protection. In opposition, Respondent in Deboer, Richard Snyder, acting in his Official Capacity as Governor of Michigan (“Snyder”), counters that nothing in the Fourteenth Amendment’s history or plain text meaning requires states to license same-sex marriage.
ARE OHIO’S MARRIAGE RECOGNITION LAWS CONSTITUTIONAL?
Obergefell argues that Ohio’s marriage recognition laws are unconstitutional under the Supreme Court’s ruling in Windsor. Obergefell explains that the Windsor Court found the Defense of Marriage Act (“DOMA”) unconstitutional because the “design, purpose, and effect” of DOMA was to “single out ‘same-sex marriages made lawful by . . . the States for ‘restrictions and disabilities.’” Obergefell believes that the plain text of Ohio’s recognition laws similarly—and unconstitutionally—“single out” same-sex couples.
Obergefell also compares the legislative history and context behind DOMA to that of Ohio’s recognition laws. First, Obergefell underscores the various references throughout DOMA’s legislative history to protecting “traditional,” “heterosexual-only,” and “moral” marriages. Obergefell claims that the history behind the Ohio recognition laws is a near mirror image of the impermissible purpose that drove the enactment of DOMA. Ohio legislators and proponents of the recognition laws, according to Obergefell, endeavored to resist the “dangers” of recognizing “deviant relationships that seek to imitate marriage.” In terms of context, Obergefell notes that Ohio enacted its recognition laws eight years after DOMA and landmark Supreme Court decisions that legitimized same-sex relationships. Thus, Obergefell argues, the intent of Ohio lawmakers was to defy other states’ progress towards full legal protection of same-sex couples and deny same-sex couples the same legal status and dignity conferred on heterosexual couples in Ohio.
Lastly, Obergefell emphasizes that the Windsor Court struck down DOMA because the “practical effect” of that law was to disadvantage and stigmatize lawful same-sex marriages. Similar to DOMA, Obergefell contends, the Ohio recognition laws interfere with same-sex married couples’ and their families’ personal matters. For instance, Obergefell claims that the Ohio recognition laws place a severe burden on these couples to amass legal documents (such as adoption decrees) to obtain vital legal protections that married heterosexual couples automatically receive.
Hodges counters that Windsor does not require states to recognize out-of-state same-sex marriages. Hodges resists extending the Windsor Court’s interpretation of the Fifth Amendment (invalidating DOMA) to reading a “freestanding marriage-recognition right” into the Fourteenth Amendment. Such a reading, Hodges claims, violates the Full Faith and Credit Clause and the “public-policy exception,” the latter of which permits states to not “apply another State’s law in violation of its own legitimate public policy.” Hodges explains that the Fourteenth Amendment, a more “generalized” source of constitutional protection, cannot create a fundamental right (such as marriage recognition) if the Full Faith and Credit Clause (a more specific and explicit source) does not recognize such a right.
Furthermore, Hodges contends that a recognition right would “thwart the local democracies Windsor fostered.” Hodges reads the Windsor Court’s invalidation of DOMA as responding to the chilling of “democratic dialogue” that preceded new legislation, promoting the consensus of “the community’s democratic will,” and protecting the neutrality that necessarily results from democratic debate within the states.
Lastly, Hodges claims that Ohio’s tradition of not recognizing “void rather than voidable” out-of-state marriages and application of the “traditional definition” of marriage precludes a finding of unconstitutional “animus” under Windsor, where animus is defined as a “desire to harm a politically unpopular group.”
DO OHIO’S MARRIAGE RECOGNITION LAWS SATISFY THE APPLICABLE STANDARD OF REVIEW?
Obergefell argues that Ohio’s recognition laws are subject to heightened scrutiny because they discriminate based on sexual orientation and sex. According to Obergefell, Supreme Court precedent does not confer a “presumption of constitutionality” on such discrimination. A Supreme Court ruling that clarifies the necessity of heightened scrutiny, Obergefell maintains, would affirm the “equal dignity” of homosexual couples. Specifically, Obergefell argues that the Supreme Court should apply “heightened judicial suspicion” to sexual orientation classifications based on four considerations the Supreme Court uses to identify “suspect” classifications: (1) homosexuals have suffered a long “history of discrimination”; (2) sexual orientation “does not bear on an individual’s ability to perform in or contribute to society”; (3) sexual orientation is an “immutable characteristic” and “fundamental to a person’s identity”; and (4) people who identify as gay lack political power to protect themselves from discrimination despite “recent progress by gay people in challenging statutory and constitutional restrictions on marriage.”
Next, Obergefell cites United States v. Virginia for the proposition that because “all gender-based classifications today warrant heightened scrutiny,” Ohio’s recognition laws warrant heightened judicial scrutiny because they inherently classify same-sex marriages based on sex. In the alternative, Obergefell argues that Ohio’s marriage recognition laws fail to satisfy rational basis review. Specifically, Obergefell rejects the notion that “a state majority’s desire to withhold marriage rights from same-sex couples . . . ‘bear[s] a rational relationship to an independent and legitimate legislative end.’” Similarly, Obergefell refutes “irresponsible procreation” and “optimal parenting” as justifying the recognition laws.
Hodges counters that Ohio’s recognition laws do not warrant heightened scrutiny because they do not infringe a “fundamental right” or discriminate against a “suspect” class. To that end, Hodges contends that same-sex marriage fails to qualify as a fundamental right because “the right to marry has never included same-sex marriage” and “the right to marry is a privacy right, not a right to public recognition.” First, Hodges notes that the first state to permit same-sex marriage did not do so until 2004, and that the Supreme Court’s right-to-marry cases up to that point had referenced the “traditional” definition of marriage. Second, Hodges interprets a fundamental right as “a right against government, not a right to government,” or in other words, entitlement to government protection of a specific liberty interest. For purposes of comparison, Hodges notes that the Supreme Court has never created a “positive right” to privacy; a right to protection and recognition of the right to same-sex marriage, Hodges continues, may be “fundamentally important . . . without being a fundamental right.”
Hodges further contends that “sexual orientation” is not a suspect classification. The Supreme Court, Hodges argues, has never applied heightened scrutiny to laws that allegedly discriminated based on sexual orientation. Next, Hodges emphasizes that a suspect classification depends on lack of political power. Hodges claims that people who identify as gay represent the opposite of “political invisibility,” noting the depth and breadth of support for same-sex marriage from amici, lawmakers, and public policy across the country. Lastly, although Hodges concedes that gay people have suffered prejudice across the states, Hodges asserts that “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter” and distinguishes sexual orientation from “area[s] like race or gender.”
Hodges also refutes Obergefell’s argument that Ohio’s recognition laws trigger heightened gender-discrimination scrutiny. These laws, Hodges claims, are gender neutral and Obergefell has failed to show the requisite proof that Ohio “enacted the law with discriminatory intent toward one gender.” Furthermore, Hodges argues that traditional marriage does not involve the unequal treatment of either gender.
In the context of rational-basis review, Hodges cites five purportedly rational grounds for not recognizing lawful out-of-state same-sex marriages that Ohio has decided not to license: (1) a rational state interest in in-state control over political processes within state lines; (2) preserving the “democratic choice” of the state’s legislature and citizens in deciding Ohio’s public policy as it relates to same-sex marriage; (3) discouraging individuals from evading Ohio’s marriage laws by getting married in other states and then receiving the benefit of marriage recognition after returning to Ohio; (4) the administrative benefits of uniformity in marriage licensing; and (5) allowing states to “wait and see” whether “novel changes” in other states work before being required to follow suit.
DOES THE FOURTEENTH AMENDMENT REQUIRE STATES TO GRANT SAME-SEX MARRIAGE LICENSES?
In Deboer v. Snyder, a consolidated case, Petitioner Deboer contends that the Fourteenth Amendment demands that states license same-sex marriage. In particular, Deboer maintains that marriage creates numerous societal benefits—stability to families, certainty for children, and for same-sex parents the ability to dispel thoughts that their families are “inferior” or “second tier.” Deboer thus contends that denying same-sex couples and their children these same protections is constitutionally impermissible because allowing a state to exclude same-sex couples from legally recognized marriage violates both the Due Process and Equal Protection clauses.
More specifically, regarding equal protection, Deboer maintains that laws prohibiting same-sex marriage fail under the least strict standard: rational basis.Deboer explains that this is because the reasons offered by the state in defense of such laws—including encouraging procreation and family relationships—are not rationally related to such a law, and thus are arbitrary and passed with improper purposes. Deboer further argues that any statute banning marriage between same-sex partners triggers heightened scrutiny under the Equal Protection Clause because such laws discriminate on the basis of sexual orientation. Thus, since such laws fail under rational basis, Deboer asserts that they also fail under a heightened scrutiny standard. Lastly, with regards to due process, Deboer submits that restricting the right of same-sex couples to marry violates the long-recognized, fundamental freedom to marry, which is a potential violation of substantive due process.
In opposition, however, Respondent Snyder counters that nothing in the Fourteenth Amendment’s history or plain text meaning requires states to license same-sex marriage. Snyder maintains that rather than the Court vis-à-vis the Constitution requiring states to license same-sex marriage, states—through popular vote, state constitutional amendments, or statutes—are the appropriate democratic processes for licensing same-sex marriage. To further support its contention, Snyder notes that while state and federal courts effectively allow same-sex couples to marry in thirty-seven states, only eleven states adopted Deboer’s proposed definition of marriage through legislative action or democratic vote. Snyder thus contends that the larger democratic position of the states cuts against allowing states to license same-sex marriage, and that “the process of social change cannot be short-circuited by the lower federal courts, however numerous their decisions.”
On the point of equal protection, Snyder argues that states can define marriage as between opposite-sex partners without violating equal protection. Snyder maintains that under rational basis review, a state can restrict marriage for the rational reasons, including allowing a child to be raised by a mother and father, and procreation. Though Snyder contends that such marriage laws should not trigger heightened scrutiny, Snyder argues that these laws would also survive any level of scrutiny.Snyder contends that redefining marriage will impact the stability of children growing up with a mother and father, and since redefining marriage “erodes that paradigm,” states may do so without fear of violating the Equal Protection Clause.Finally, in response to Deboer’s due process arguments, Snyder submits that “[t]here is no substantive-due-process right to a particular marriage definition.” For support, Snyder maintains that the right to marry someone of the same sex is not a “deeply rooted” right, and that the “Court has never suggested that a right to marriage requires government recognition.”
The Supreme Court’s decision in this case may clarify whether the Fourteenth Amendment requires states to (1) recognize out-of-state same-sex marriages, and (2) license a marriage between same-sex couples. Though only one of the consolidated cases, Obergefell’s and Hodges’ arguments are generally representative of the views, advocated by the parties in Tanco v. Haslam and Bourge v. Beshear, regarding their respective state’s laws that do not recognize out-of-state same-sex marriage licenses. On the first issue, Obergefell argues that Ohio’s recognition bans violate the Fourteenth Amendment and are inconsistent with Windsor. Hodges counters that Windsor upholds federalism by deferring to the states’ authority to recognize same-sex marriages. Deboer, Petitioner in a consolidated case, argues that the Court should require states to license same-sex marriage under principles of due process and equal protection. Respondent in Deboer, Richard Snyder, acting in his Official Capacity as Governor of Michigan (“Snyder”), counters that nothing in the Fourteenth Amendment’s history or plain text meaning requires states to license same-sex marriage. The Supreme Court’s ruling in these cases—in addition to having potential profound effects on the rights of same-sex couples—will implicate the rights of those related to them, including their children, as well as federalism considerations.
THE RIGHTS OF CHILDREN OF SAME-SEX COUPLES
Obergefell and supporting amici argue that Ohio’s recognition bans diminishes the rights of children of same-sex parents by depriving them of legal, financial, and societal benefits. The County of Cuyahoga, Ohio contends that Ohio’s recognition ban obstructs children’s ability to develop meaningful legal relationships with their parents. Moreover, the Family Equality Council argues that the legalization of same-sex marriage has provided “powerful emotional and psychological benefits” for tens of thousands of children in America. Similarly, the American Psychological Association (“APA”) maintains that hundreds of studies confirm that factors contributing to a child’s healthy adjustment—parental warmth, consistency, and security—do not depend on a parent’s gender or sexual orientation. The APA and the American Sociological Association both highlight scientific studies confirming that same-sex parents are equally as capable as heterosexual parents and that the children of same-sex and heterosexual couples are equally psychologically healthy.
Hodges and supporting amici, however, argue that reversing Ohio’s recognition ban would threaten biological parents’ rights to determine how to rear their children. Alabama Governor Robert J. Bentley (“Bentley”) argues that extending legal recognition to same-sex couples would be detrimental because father-child relationships are nonexistent absent heterosexual marriages. Bentley contends that children’s rights can only be achieved after a heterosexual marriage “formally bind[s] the husband-father to his wife and child, and impos[es] on him the responsibilities of fatherhood.” Similarly, the Ruth Institute argues that the public purpose of marriage is to preserve biological parent-child relationships by binding natural mothers and fathers to their children.The Ruth Institute fears that a ruling for Obergefell would detach “the biological definition of ‘parent’ from its legal definition” by disparaging natural parents’ legal status and jeopardizing children’s rights to know their natural parents.
PROMOTING FEDERALISM PRINCIPLES
Obergefell and supporting amici argue that Ohio’s recognition bans obstruct the state’s sovereignty to determine the status of same-sex marriage, thus impairing principles of federalism. Massachusetts and fifteen other states (“the states”) argue that permitting same-sex marriage advances various state interests, such as maintaining public order and ensuring support in times of crisis. The states further contend that state sovereignty is restricted by constitutional guarantees, and that the Windsor decision prohibiting the federal government from defining marriage applies to states. Relatedly, Virginia emphasizes that a ruling against the Petitioners would be inconsistent with Windsor because equal protection rights trump federalism considerations.
Hodges and supporting amici argue that requiring recognition rights would undermine federalism principles under Windsor. Bentley maintains that under the Tenth Amendment, states have the sovereign right to assign marital privileges. Bentley asserts that a ruling for Obergefell would expand the power of the federal judiciary to decide instances where marriages are legal, thereby usurping state sovereignty. Additionally, a group of Wyoming Legislators contends that states are traditionally not compelled to recognize marriages that clash with a state’s public policy or definition of marriage. The Wyoming Legislators assert that the Full Faith and Credit Clause does not require states to oppose their own public policy to recognize out-of-state marriages; rather, a state’s decision to recognize out-of-state marriages is a choice of law issue.
DO ALTERNATIVE LEGAL UNIONS FOR SAME-SEX COUPLES GRANT SUFFICIENT LEGAL PROTECTION?
The American Bar Association (“ABA”), writing in support of the Petitioners, argues that legal substitutes to marriage are inadequate solutions that constitute expensive ways to legally re-create rights and obligations automatically created through marriage. The ABA argues that a few examples of rights that many same-sex couples cannot adequately control without recognition of same-sex marital rights include: the right of inheritance, the right to direct the burial of a partner’s remains, the right to make medical decisions on behalf of one’s partner, and parental rights. The ABA contends that the most stark example of this inequality is evidenced by the fact that many states legally presume that a married couple’s child is the child of both spouses, and that this is “one of the strongest presumptions in the law.” The ABA notes that even with adequate legal counsel, same-sex couples who cannot marry will never enjoy the same presumption of legal parenthood.
In support of the Respondents, Idaho Governor C.L. “Butch” Otter (“Butch”) contends that alternative arrangements for people who identify as gay—such as single parenting, step parenting, cohabitation, or adoption—provide enormous societal benefits. Nonetheless, Butch claims that such arrangements “cannot compare to the overall benefits that a married, biologically-intact home environment provides.” Butch maintains that by limiting full legal recognition and benefits conferred by marriage solely to heterosexual couples, the state better promotes family stability and social norms. In Bourke v. Beshear, one of the consolidated cases, Respondent Kentucky Governor Steve Beshear argues that same-sex couples—lawfully married in one state but who move to another state that does not recognize their marriage as legal—face no additional burden than some heterosexual couples in a similar situation. As an example, Beshear notes that heterosexual marriage between first cousins is legal in California, but not recognized in Kentucky.
In this case, the Supreme Court may decide whether the Fourteenth Amendment mandates that a state recognize legally licensed same-sex marriages performed out-of-state. Obergefell argues that Ohio’s failure to recognize same-sex marriage is unconstitutional and inconsistent with Windsor. Hodges counters that in accordance with Windsor and federalism principles, states have the authority to ban recognition of lawfully performed same-sex marriages performed in another state. The Court may also determine whether the Constitution requires a state to license same-sex marriage without that state otherwise licensing same-sex marriage on its own terms. Deboer contends that the Fourteenth Amendment demands that states license same-sex marriage. However, Snyder argues that the judiciary is not the appropriate means for states to license same-sex marriage; rather, popular vote, or legislative action are proper means for states to license same-sex marriage. The Supreme Court’s decision in these cases may have significant implications on the rights of same-sex individuals and their children, as well as federalism principles in regulating the marital and family spheres.
- Jess Bravin: Supreme Court to Decide Whether States Must Recognize Same-Sex Marriage, The Wall Street Journal (Jan. 16, 2015).
- Orin Kerr: Supreme Court Agrees to Hear Same-Sex Marriage Cases, The Washington Post (Jan. 16, 2015).
- Kevin Rector: A Unique Maryland Marriage Sits at Center of Supreme Court Case Considering Gay Nuptials, The Baltimore Sun (Mar. 13, 2015).
- Greg Stohr: Gay Marriage May Be Legal Across U.S. After Supreme Court Review, Bloomberg (Jan. 16, 2015).