In Obergefell v. Hodges, the U.S. Supreme Court held that states must recognize marriages between same-sex couples. The case was narrowly decided on a 5-4 vote, with Justice Anthony Kennedy issuing the swing vote and writing the opinion for the majority. As Justice Kennedy summed up, in unusually lofty language for a Supreme Court decision, same-sex couples “hope . . . not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."
As with other cases involving controversial Due Process and Equal Protection arguments, the decision remains contested to this day.
- Background and Facts Concerning Obergefell v. Hodges
- Four Principles Supporting Marriage Equality
- Due Process and Originalism
- The Equal Protection Clause
- Justice Roberts' Dissent
- Justice Scalia's Scornful Dissent
- Lasting Impact
Background and Facts Concerning Obergefell v. Hodges
When the Supreme Court decided Obergefell in 2015, 37 states had already legalized same-sex marriage. Most of the remaining states specifically prohibited it through legislation (known as “Defense of Marriage Act" laws) or through constitutional amendments.
That most states already issued marriage licenses to same-sex couples was the result of a sustained grassroots movement that had started decades earlier. Massachusetts was the first state to begin issuing marriage licenses to same-sex couples, in 2004. Just 8 years earlier, Congress had passed the federal Defense of Marriage Act (DOMA), which President Bill Clinton signed into law in 1996, that defined marriage as between a man and a woman.
However, the fight for the freedom to marry only grew. States began issuing civil unions to same-sex couples, which provided many of the same rights as state marriage laws but were not defined as marriage.
As part of the continued fight for marriage equality, same-sex couples living in Ohio, Michigan, Kentucky, and Tennessee sued the state agencies responsible for issuing marriage licenses in their jurisdictions, claiming that denying them a marriage license violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The district courts all agreed, but the Sixth Circuit Court of Appeals held that it did not. The Supreme Court granted certiorari and took up the case. Just two years earlier, the court had decided in United States v. Windsor that DOMA was unconstitutional. After that decision, it was assumed that the Supreme Court would have to take up the marriage equality issue soon. When the Court did, in 2015, the case was one of the most anticipated of the decade.
The court's decision in Obergefell also addressed another Sixth Circuit case, Bourke v. Beshear, which challenged Kentucky's same-sex marriage ban.
Four Principles Supporting Marriage Equality
Obergefell is among the privacy line of cases the Supreme Court has decided since the 1960s. Notable privacy rights cases include Griswold v. Connecticut (1965), Loving v. Virginia (1968), Roe v. Wade (1973), and Lawrence v. Texas (2003). The majority specifically tied its decision in Obergefell to these precedents. Justice Kennedy wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor.
The majority offered four principles for why marriage is a fundamental civil right that applies to same-sex couples the same as everyone else:
- Individual autonomy. The right to decide who to marry is an intimate thing, which is why the Supreme Court held that bans on interracial marriages violated due process in Loving v. Virginia.
- Intimate association. In Griswold v. Connecticut, the Supreme Court held that the Constitution protects marital privacy against state prohibitions on contraception. Similarly, the majority held, same-sex couples have the same right to intimate association as opposite-sex couples.
- Childrearing, procreation, education. Children of same-sex couples are hurt and made lesser by the government's failure to recognize same-sex marriage. As such, it violates the fundamental rights of parents, including the right to raise and educate their children as they see fit.
- States have made marriage fundamental to society. Because so many rights are tied to marriage, it is unfair to deny these rights and protections based on a person's sexual orientation.
Due Process and Originalism
The legal question was whether the Fourteenth Amendment guarantees same-sex Americans the right to marry. The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Using the above four principles, Justice Kennedy explained that in the majority's view the right to marry is a fundamental right under the due process clause. Moreover, the Fourteenth Amendment has long protected minority groups, with the Founders having understood this at the time it was drafted.
In Obergefell, as with other Fourteenth Amendment cases, the controversy is over whether the Constitution affords liberty rights that were not necessarily thought of by the Founders or Congress when enacted. In other words, it is a question about the doctrine of originalism. Under originalism, judges look to what the prevailing thought was at the time legislation, the Constitution or a constitutional amendment was enacted.
However, in Justice Kennedy's view, the Founders understood that rights and liberties can evolve. As he put it, “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to further generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."
Justice Kennedy did address some of the criticisms of the dissents, writing that while the democratic process was the preferred method for resolving most issues, this was not true of certain fundamental rights.
The Equal Protection Clause
The majority tied the Equal Protection clause to the Due Process clause in finding that same-sex marriage bans violated both. Justice Kennedy wrote that “The Due Process Clause and the Equal Protection Clause are connected in a profound way" and that under Equal Protection, “the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged."
Justice Roberts' Dissenting Opinion
Chief Justice John Roberts read his dissent from the bench, the first time he had done so, as a way to signal the extent and stridency with which he disagreed with the ruling. Chief Justice Roberts called the case for marriage equality “compelling" but said the legal arguments were unsupported.“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not," the Chief Justice wrote.
Instead, he would have agreed with the Sixth Circuit and held that the debate over marriage equality was a question for Congress and the states, not for the federal judiciary.
Justice Scalia's Scornful Dissent
Never one to mince words, Justice Antonin Scalia wrote separately "to call attention to this Court's threat to American democracy." In some ways, Justice Scalia's dissent can be seen as the polar opposite of Justice Kennedy's. Justice Kennedy used soaring and hopeful language, while Justice Scalia wrote bluntly and scornfully to come to the opposite conclusion.
His dissent “is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law." Justice Scalia emphatically wrote to say the Constitution is clear in giving that task to the democratic process.
Justice Scalia also noted that the majority's Equal Protection analysis was “quite frankly, difficult to follow" and “fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position."
As with other Due Process and Equal Protection cases, Justice Scalia would have used an originalist framework to find that the Constitution was silent as to the right for same-sex couples to marry.
To this day, Obergefell remains a contested decision. Two of the Justices still serving on the Supreme Court, Samuel Alito and Clarence Thomas, subsequently wrote that Obergefell was wrongly decided and infringes on religious liberty, raising the specter that Obergefell and other privacy rights cases could be revisited.
The majority in Obergefell did explicitly hold that religious exemptions are still recognized under the constitution. However, that debate, and the extent to which the First Amendment protects religious institutions, is still a hotly contested issue.
While a landmark case, the issues it presents are still relevant, and future cases are sure to revisit the legal arguments present in Obergefell. In his concurrence overturning Roe v. Wade in 2022, Justice Thomas wrote, “In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell."
This seems to indicate that if the right case reached the Supreme Court, Justice Thomas would support overturning Obergefell as well. Interestingly, Justice Thomas (a Black man married to a white woman) did not mention Loving v. Virginia, the case that legalized interracial marriage under substantive due process. If Obergefell is challenged, the Court could uphold it under the equal protection clause, even if it finds the due process protection no longer applies.