Obergefell Decision

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1 Obergefell Decision GOVT422 Prof. Krause October 13, 2023

2 Obergefell Decision Marriage is a sacred union between two people and has been for all of time. It has served as an opportunity for social or monetary gain as well as a union between two families. “As America has evolved over the centuries, so too has the institution of marriage” (PBS, 2014). With this evolution of culture comes the need to review American statutes to ensure all rights are protected. Obergefell v. Hodges is one of the most controversial Supreme Court decisions of this generation. With same-sex marriage being an extremely controversial topic with many religious implications, the Obergefell decision promised scrutiny and criticism. However, the Supreme Court has the role of protecting those who’s rights have been erroneously taken and through the Justice’s analysis they believe they did just that. Background In 2013, James Obergefell and John Arthur James were legally married in the state of Maryland. Obergefell v . Hodges, 576 US 644, (2015). Shortly after, the two resided in Ohio, and, on July 19, they filed a lawsuit challenging Ohio’s refusal to recognize a legal same-sex marriage on a death certificate. John Arthur James was terminally ill when the two filed the lawsuit and not too long afterwards he passed away. Mr. Obergefell was concerned that Ohio would not recognize that Mr. Arthur was married at the time of his death. On July 22, the judge presiding over the case granted a temporary restraining order that instructed the state to recognize the marriage on Arthur’s death certificate. In September, an amended complaint was filed with two additional plaintiffs with similar concerns. “In the amended complaint, the plaintiff’s sought a declaration from the court that Ohio’s practice of denying recognition of marriages lawfully performed in other states on death certificates is unconstitutional and requested an injunction to stop this practice” (ACLU of Ohio,

3 2014). The judge declared Ohio’s practice of denying recognition of lawful same-sex marriages on death certificates as unconstitutional and prohibited Ohio from enforcing this practice on the plaintiffs. The decision was appealed by the defense and the Court of Appeals reversed the decision. Obergefell did not stop there. In November of 2014, he filed a Petition for a Writ of Certiorari with the U.S. Supreme Court. The Supreme Court consolidated all of the cases from the same circuit that challenged same-sex marriage restrictions. On June 26, 2015, the Supreme Court held that the Fourteenth Amendment requires all states to license marriages between same- sex couples. The Court’s Opinion In this 5-4 Supreme Court decision, Justice Anthony Kennedy delivered the Court’s opinion. Justices Ginsburg, Breyer, Sotomayor, and Kagan make up the majority opinion. Justice Kennedy first begins the opinion by highlighting the importance of marriage. Marriage has been a sacred practice for all of time and unites two people in love to build a life together. Justice Kennedy even states that, “Confucius taught that marriage lies at the foundation of government.” Obergefell v . Hodges, 576 US 644, (2015). This understanding of the importance of the union of marriage underlined the petitioners’ complaints. Justice Kennedy then gives a brief background of some of the petitioners and their unique predicaments because of the inability to be legally marriage or recognized as legally married. These stories paint a picture of some inadvertent consequences that result from not being able to have a legally recognized marriage. The opinion then overviews the history of gay relationships in the United States. Homosexuality was seen as an illness and homosexual couples could face criminal charges in many states. “In the late 20 th century, following substantial cultural and political developments,

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4 same-sex couples began to lead more open and public lives and to establish families.” Id . As time progressed, more cases were brought to the District Courts and the Courts of Appeals. In most cases, the Court of Appeals has held that denying same-sex marriage is unconstitutional. Many District Court decisions also have held that it is unconstitutional. These previous cases give the Supreme Court plenty of case law to ground their decision in. The Due Process Clause of the Fourteenth Amendment says that no State shall “deprive any person of life, liberty or property, without due process of law” (Cornell Law School, 2013). These ‘liberties’ are found in the Bill of Rights and also cover certain personal decisions on autonomy and “intimate choices that define personal identity and beliefs.” Obergefell, 576 US 644, (2015). As time progresses, the Supreme Court is tasked with defining and protecting these liberties. “History and tradition guide and discipline this inquiry but do not set its outer boundaries.” Id . The Court has consistently held that the right to marry is protected by the Constitution and this can be seen in Loving v. Virginia , which allowed interracial marriage. Case law regarding marriage constantly holds that the right to marry is fundamental under the Due Process Clause. There are four principles that lead the Court to reach its decision on same-sex marriage. The first is that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Id . The Court recognizes that marriage is a very intimate personal decision, and each person has a right to privacy regarding their family life and relationship. This is found to be true for all persons, no matter their sexual orientation. The second principle is that the right to marry is fundamental to the Constitution because it supports a union between two people. “…[S]ame-sex couples have the same right as opposite-sex couples to enjoy intimate association.” Id. The third principle is that it protects children and families, which means the

5 right to marry is closely related to the rights concerning “childbearing, procreation and education.” Id. Many homosexual couples have created safe and loving homes for their children, whether they be adopted or biological. The last principle is that marriage is the cornerstone of our social order. The United States has a long history of highly respecting the union of marriage. Marriage has historically had so many added benefits. “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.” Id . For all these reasons, the Supreme Court holds that same-sex marriage is a fundamental right protected by the Constitution. Dissenting Opinions Chief Justice John Roberts, Jr. wrote a dissenting opinion for the Obergefell decision, as well as Justices Scalia, Thomas, and Alito. Justice Roberts argues that since the Constitution does not address same-sex marriage, it is beyond the Supreme Court’s purview to decide on. He argues that this decision should remain to be left up to each state legislature. The Court can not engage in judicial policymaking, and Justice Roberts believes that this decision does just that. He goes on further to argue that the precedents described in the Court’s opinion do not support “making a state alter its definition of marriage” ( Obergefell v. Hodges , 2019). The Court’s use of the Due Process and Equal Protection Clauses of the Fourteenth Amendment were overly expansive in their application to the case. In Justice Scalia’s separate dissenting opinion, he argues that the majority overstepped the Court’s authority by exercising legislative powers. The Constitution only allows the States to make such decisions. He adds that the decisions regarding the legality of same-sex marriage should be left for the state legislatures to decide. By having unelected judges make

6 decisions on such a matter “goes against one of the most basic precepts of the Constitution” ( Obergefell v. Hodges , 2019). By leaving the decision up to each State, the people have the ability to elect representatives that hold similar opinions on the same-sex marriage. Political changes should occur only through these elected representatives and not through appointed Justices. In Justice Thomas’s separate dissenting opinion, he argues that the majority “stretched the doctrine of substantive due process rights found in the Fourteenth Amendment too far and in doing so distorted the democratic process by taking power form the legislature and putting it in the hands of the judiciary” ( Obergefell v. Hodges , 2019). Similar to the other dissenting opinions, he has concerns about the Supreme Court taking on the role of the legislature. He adds that the majority infringed on religious freedoms by making a decision rather than letting the representative legislature dictate the matter. However, in Bowers v. Hardwick , a Supreme Court case on homosexual conduct, Justice Thomas said in his dissenting opinion that, “Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources” (Stephens, et al., pg. 402). In Justice Alito’s dissenting opinion, he argues that the Constitution does not address the right of homosexual couples to marry. Because of this, he also believes that the decision should have been left up to the States to decide. He believes that the majority “dangerously strayed” from the democratic process by making such a decision.

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7 References ACLU of Ohio. (2014, January 16). Obergefell v. Hodges . ACLU of Ohio. https://www.acluohio.org/en/cases/obergefell-v-hodges Cornell Law School. (2013). Obergefell v. Hodges . LII / Legal Information Institute. https://www.law.cornell.edu/supremecourt/text/14-556 Marriage | History Detectives | PBS . (2014). Pbs.org. https://www.pbs.org/opb/historydetectives/feature/marriage/ Obergefell v. Hodges , 576 US 644, (2015). Obergefell v. Hodges . (2019). Oyez. https://www.oyez.org/cases/2014/14-556 Scheb, J. M., & Stephens, O. H. (2014). American constitutional law. Volume II . Wadsworth.

Obergefell Decision

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