Obergefell v. Hodges is a landmark case in which on June 26, 2015, the Supreme Court of the United States held, in 5-4 decision, that state bans on same-sex marriage and on recognizing same sex marriages duly performed in other jurisdictions are unconstitutional under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution.
Writing for the majority, Justice Anthony Kennedy asserted that the right to marry is a fundamental right “inherent in the liberty of the person” and is therefore protected by the due process clause of the Fourteenth Amendment, which prohibits the states from depriving any person of “life, liberty or property without the due process of law.” The marriage right is also guaranteed by the equal protection clause, by virtue of the close connection between liberty and equality. In this decision Justice Kennedy also declared that “the reason marriage is fundamental…apply with equal force to same-sex couples”, so they may “exercise the fundamental right to marry.” The majority decision was signed by Justices Breyer, Ginsburg, Kagan and Sotomayor. Justices Roberts, Scalia, Thomas and Alito dissented.
In addition to giving same-sex couples an opportunity to get legally married the decision also positively influenced other aspects of same-sex couple’s family life, giving them adoption rights; possibility to obtain employment and social security benefits as well as health care; the ability to be a spouse’s next-of-kin for purposes of making medical decisions etc. The decision influenced not only family law but also property law insurance, tax and business.
In 1972, in the decision in Baker v. Nelson the Supreme Court of the United States declined to hear the case about the denial of the marriage license application for same-sex couple “for want of a substantial federal question.” This ruling blocked federal courts from reviewing same-sex marriage cases for decades, leaving the decision solely in the hands of states.
In 1973 Maryland became the first state to create a law that explicitly defines marriage as a union between a man and a woman, and other states were eager to adopt Maryland’s course (Virginia 1975, Florida, California and Wyoming 1977).
In late 1980s and early 1990s same-sex couples were able to see some signs of hope on the marriage front. In 1981, the San Francisco Board of Supervisors passed an ordinance that allowed homosexual couples and unmarried heterosexual couples to register for domestic partnership, which also granted hospital visitation rights and other benefits. Three years later the District of Columbia also passed a domestic partnership law, granting same-sex couples a number of important benefits like the possibility of receiving a health care coverage if their partner was employed by the DC government. In 1993 the highest court in Hawaii ruled that a ban on same-sex marriage may violate the state constitution’s Equal Protection Clause- the first time a state court has ever inched toward making same-sex marriage legal, however, the First Circuit court buried the ideas that decision propelled and in 1996 the US Congress added another blow by passing the Defense Marriage Act (DOMA). Even though DOMA did not ban same-sex marriage it provided that only heterosexual couples could be granted federal marriage benefits. Additionally, even if a state made same-sex marriage legal, couples still wouldn’t be able to file income taxes jointly, sponsor spouses for immigration benefits, or receive spousal Social Security payment etc. In 1998 the outlook of the rest of the country on to the same-sex marriage bans got to Hawaii, where voters approved a constitutional amendment banning same-sex marriage in the state.
In 2000, Vermont became the first state to legalize civil unions, a legal status that provided most of the state-level benefits of marriage. Three years later, the Massachusetts Supreme Court ruled that same-sex couples had the right to marry and began issuing marriage licenses on May 17, 2004. Even though later the same year, the U.S. Senate blocked a Constitutional Amendment supported by President George W. Bush that would outlaw same-sex marriages in the whole country, ten typically conservative estates along with Oregon enacted state-level bans on gay marriages.
In 2010, Massachusetts, the first state to legalize gay marriage, found Section 3 of DOMA that defined marriage as a union between one man and one woman to be unconstitutional, in 2013, in United States v. Windsor, the Supreme Court of the United States struck down Section 3 of DOMA. Although after the United States v. Windsor the U.S. government could not deny federal benefits to married same-sex couples, other parts of DOMA were still active, including Section 2, which declared that states and territories could refuse to recognize the marriage of same-sex couples from other states (DOMA will be declared unconstitutional by Obergefell v. Hodges).
By 2015 (the year Obergefell was decided) thirty-six states already issued marriage licenses to same-sex couples and more than 20 counties around the world had already legalized gay marriage, starting with the Netherlands in 2000. A Pew Research Center poll in 2001 found that 57% of the Americans opposed same-sex marriage and only 35% supported it. In 2016, the same poll found almost the complete opposite: 55% of the Americans supported same-sex marriage and 37% opposed.
Obergefell v. Hodges is a consolidation of six-lower court cases from Michigan, Ohio, Kentucky and Tennessee.
Originally DeBoer v. Snyder (2014), involved a female couple that was not legally married (only had commitment ceremony due to the state’s ban on same-sex marriages) and wanted to adopt three children. According to the Michigan law adoption was allowed only for single people or married couples. The couple filed a law suit in the United States District Court for the Eastern District of Michigan challenging the state’s ban on same-sex marriage. Judge Friedman, presiding over the case ruled for plaintiffs, “without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the [state marriage ban] cannot stand.”
Ohio case 1: originally Obergefell v. Wymwyslo. Following the U.S. Supreme Court’s decision in United States v. Windsor, James Obergefell and John Arthur residents of Ohio decided to get married in Maryland. After learning that their state of residence, would not recognize their marriage, they filed a lawsuit in the United States District Court for the Southern District of Ohio alleging that the state discriminates against same-sex couples legally married out-of-state. Judge Black ruled that Ohio’s refusal to recognize same-sex marriages from other jurisdictions was discriminatory. Judge Black wrote: “When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court.”
Ohio Case 2: originally Henry v. Himes (2014). This case involved four couples that wanted to be listed on their children’s birth certificates. In Obergefell v. Wymwyslo Judge Black ruled that Ohio must recognize same-sex marriages from other jurisdictions and two days later in this case he stayed the enforcement of his ruling, except for the birth certificates sought by the plaintiffs.
Kentucky case 1: originally Bourke v. Beshear (2014) also dealt with the recognition of the out of state same-sex marriages. Judge Heyburn, at the United States District Court for the Eastern District of Kentucky held: “in the end, the Court concludes that Kentucky’s denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, the Kentucky’s statutes and constitutional amendment that mandate the denial are unconstitutional.”
Kentucky case 2: originally Love v. Beshear (2014), challenged the state’s ban on same-sex marriages. Two male couples involved in the case were denied their marriage licenses, even though one of the couples had a religious marriage ceremony and the other couple had been living together for thirty years. Judge Heyburn held that “homosexual persons constitute a quasi-suspect class,” and declared that Kentucky’s law banning same-sex marriages violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
Originally Tanco v. Haslam (2014), also dealt with the recognition of the out of state same-sex marriages. Judge Trauger from the United States District Court in the Middle District of Tennessee granted a preliminary injunction requiring the state to recognize the marriages of the three plaintiff couples. She wrote, “At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be place on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.”
The six decisions of the four federal district courts were appealed to the United States Court of Appeals for the Sixth Circuit: Obergefell v. Wymyslo (renamed in the process); Tanco v. Haslam; DeBoer v. Snyder; Bourke v. Beshear; Love v. Beshear; Henry v. Himes. On November 6, 2014, in a decision styled DeBoer v. Snyder, the Sixth Circuit ruled 2–1 that Ohio's ban on same-sex marriage did not violate the U.S. Constitution. The court said it was bound by the U.S. Supreme Court's 1972 action in a similar case, Baker v. Nelson, which dismissed a same-sex couple's marriage claim "for want of a substantial federal question". Writing for the majority, Judge Sutton also dismissed the arguments made on behalf of same-sex couples in this case: "Not one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters."
Review by the Supreme Court of the United States
Claimants from each of the six district court cases appealed to the Supreme Court of the United States. On November 14, 2014, plaintiffs in DeBoer v. Snyder, Obergefell v. Hodges, and Tanco v. Haslam filed petitions for writs of certiorari with the Court. The same-sex couples in Bourke v. Beshear filed their petition for a writ of certiorari with the Court on November 18.
- Petitioners in DeBoer v. Snyder asked the Court whether denying same-sex couples the right to marry violated the Fourteenth Amendment.
- Petitioners in Obergefell v. Hodges asked the Court whether Ohio's refusal to recognize marriages from other jurisdictions violated the Fourteenth Amendment's guarantees of due process and equal protection, and whether the state's refusal to recognize the adoption judgment of another state violated the U.S. Constitution's Full Faith and Credit Clause.
- Petitioners in Tanco v. Haslam asked the Court whether denying same-sex couples the right to marry, including recognition of out-of-state marriages, violated the Due Process or Equal Protections Clauses of the Fourteenth Amendment; whether refusing to recognize their out-of-state marriages violated same-sex couples' right to interstate travel; and whether Baker v. Nelson dismissing same-sex couples' marriage claims, remained binding precedent.
- Petitioners Bourke v. Beshear asked the Court whether a state violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment by prohibiting same-sex couples to marry, and whether it does so by refusing to recognize out-of-state same-sex marriages.
On January 16, 2015, the U.S. Supreme Court consolidated the four same-sex marriage cases challenging state laws that prohibited same-sex marriage and agreed to review the case. It set a briefing schedule to be completed April 17. The Court ordered briefing and oral argument on the following questions: 1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2. 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?
The Court also told the parties to each of the four cases to address only the questions raised in their particular case. The case had 148 amici curiae briefs submitted, more than any other U.S. Supreme Court case.
Oral arguments in the case were heard on April 28, 2015. The plaintiffs were represented by civil rights lawyer Mary Bonauto and Washington, D.C. lawyer Douglas Hallward-Driemeier. U.S. Solicitor General Donald B. Verrilli Jr., representing the United States, also argued for the same-sex couples. The states were represented by former Michigan Solicitor General John J. Bursch and Joseph R. Whalen, an associate solicitor general from Tennessee.
The majority opinion
Justice Kennedy wrote the majority opinion signed by Justices Ginsburg, Breyer, Sotomayor and Kagan. The majority held that state same-sex marriage bans violate the due process and equal protection clauses of the Fourteenth Amendment. Citing Griswold v. Connecticut, the Court affirmed that the fundamental rights found the in the due process clause of the Fourteenth Amendment “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,” but the “identification and protection” of these fundamental rights “has not been reduced to any formula.” As the Supreme Court has found in cases such as Loving v. Virginia, Zablocki v. Redhail and Turner v. Safley, the extension includes a fundamental right to marry.
The Court listed four reasons why the fundamental right to marry applies to same-sex couples, citing United States v. Windsor. First, "the right to personal choice regarding marriage is inherent in the concept of individual autonomy." Second, "the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals," a principle applying equally to same-sex couples. Third, the fundamental right to marry "safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education"; procreation is not a necessary condition to a legal right, but it is one of the factors that make the right worth protecting. Fourth, "marriage is a keystone of our social order," and "[t]here is no difference between same- and opposite-sex couples with respect to this principle"; and for no reason denying the same-sex couples the right to marry is against the social principles of our society.
The Court emphasized the relationship between the liberty of the Due Process Clause and the equality of the Equal Protection Clause and struck down same-sex marriage bans for violating both clauses, holding that same-sex couples may exercise the fundamental right to marry in all fifty states "on the same terms and conditions as opposite-sex couples." The Court also held that states must recognize same-sex marriages legally performed in other states.
The Court emphasized that, while the democratic process may be an appropriate tool for deciding issues such as same-sex marriage, no individual has to rely solely on the democratic process to exercise a fundamental right. "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," for "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."
Additionally, the Court rejected the argument that allowing same-sex couples to marry harms the institution of marriage, leading to fewer opposite-sex marriages. Instead, the Court stated that married same-sex couples "would pose no risk of harm to themselves or third parties". The majority also emphasized that the First Amendment protects those who disagree with same-sex marriage, which would later lead to a lot of debates.
Chief Justice John Roberts dissented, his opinion was joined by Justices Scalia and Thomas. Roberts argued that no prior decision had changed the core component of marriage, that it be between one man and one woman; consequently, same-sex marriage bans did not violate the Due Process Clause. Roberts also rejected the idea that same-sex marriage bans violated a right to privacy, because they did not involve any government intrusion or punishment. Addressing the Equal Protection Clause, Roberts argued that same-sex marriage bans did not violate the clause because they were rationally related to a governmental interest of preserving the traditional definition of marriage. Roberts also suggested the majority's opinion conflicts with the right of religious liberty.
Justice Antonin Scalia also wrote a dissenting opinion, which was joined by Justice Thomas. Scalia argued that the Court's decision effectively robs the people of "the freedom to govern themselves", and the democratic process should resolve this issue. Addressing the Fourteenth Amendment violation, Scalia claimed that, because a same-sex marriage ban would not have been considered unconstitutional at the time of the Fourteenth Amendment's adoption, such bans are not unconstitutional today. He argued that there is "no basis" for the Court's decision striking down legislation that the Fourteenth Amendment does not expressly forbid, and directly attacked the majority opinion for "lacking even a thin veneer of law."
Justice Clarence Thomas wrote a dissenting opinion, which was joined by Justice Scalia. Thomas rejected the principle of substantive due process, which in his opinion "invites judges to roa[m] at large in the constitutional field guided only by their personal views as to the fundamental rights protected by that document" which leads to the judiciary reaching too far and stepping further away from the Constitutional text. Thomas argued that the only liberty that is covered under the Due Process Clause is freedom from "physical restraint". Thomas insisted that "liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement" such as a marriage license.
Justice Samuel Alito wrote a dissenting opinion, which was joined by Justices Scalia and Thomas. Referring to Washington v. Glucksberg, in which the Court stated the Due Process Clause protects only rights and liberties that are "deeply rooted in this Nation's history and tradition", Alito argued that "right" to same-sex marriage would not meet this definition. Alito defended the rationale of the states, accepting that same-sex marriage bans serve to promote procreation and childrearing. Expressing concern for judicial abuse, Alito concluded, "Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends."
After the decision was issued, Texas Attorney General Ken Paxton allegedly called the Court's decision a "lawless ruling" In a tweet, former Governor of Arkansas and then Republican candidate for the 2016 presidential election Mike Huckabee wrote, "This flawed, failed decision is an out-of-control act of unconstitutional judicial tyranny." Austin R. Nimocks, senior counsel for the Alliance Defending Freedom, accused the Court's majority of undermining freedom of speech, saying that "five lawyers took away the voices of more than 300 million Americans to continue to debate the most important social institution in the history of the world. . . . Nobody has the right to say that a mom or a woman or a dad or a man is irrelevant." National Catholic Register and Christianity Today, argued that there may be conflict between the ruling and religious liberty, mirroring the arguments of the dissent.
To this day not all states, and definitely not all courts, view same-sex marriage as a settled issue. While the Supreme Court legalized same-sex marriage throughout the United States, as of June 21, 2017, nine counties in Alabama and Texas still do not issue marriage licenses to same-sex couples. Those within these counties who wish to marry within the state must travel to another part of the state in order to obtain a license. Additionally, some counties may require at least one person to be a resident of the county in order to receive a marriage license.
In fact, some argue that it’s increasingly apparent that marriage equality opponents have a long-term plan to roll back, and eventually reverse, the effect of the Obergefell decision. In early 2016, Arkansas asserted that the Supreme Court’s same-sex marriage decision did not require the state to list married same-sex parents on their children’s birth certificate. This argument is flawed: Obergefell compels states to extend “the constellation of [marital] benefits” to same-sex couples, and mandates equal treatment for “birth and death certificates.” And yet, Arkansas Supreme Court upheld the state’s refusal to extend these privileges to same-sex couples. A majority claimed that birth certificates are a record of biology, not a benefit of marriage, and are therefore exempt from Obergefell’s command of equal treatment.
On June 26, 2017 in Pavan v. Smith the Supreme Court of the United States reaffirmed Obergefell’s core holding that states must extend all benefits and privileges of marriage to same-sex couples and reversed the decision of the Arkansas Supreme Court.
[Last updated in September of 2018 by Krystyna Blokhina Gilkis]