The Supreme Court of the United States has decided that same-sex couples have a constitutionally protected right to marry.
In the history of American jurisprudence, there are a handful of cases which are so significant that they will be known to all US law students, much of the domestic population at large, and even large segments of the international community. Brown v Board of Education, which ended racial segregation in schools, is one example. Roe v Wade, which upheld the right of women to access abortion serves, is another. To that list may now be added the case of Obergefell v Hodges.
James Obergefell fell in love with John Arthur over two decades ago. In 2011, Mr Arthur was diagnosed with amyotrophic lateral sclerosis, a progressive illness with no known cure. They decided to get married before he died, and so in July 2013 they travelled out of their home State of Ohio to Maryland, where same-sex marriage was legal. Mr Arthur was too ill to move from the medically-equipped plane, and so the ceremony took place as the plane rested on the airport tarmac in Baltimore. He died a short time later. Under Ohio State law, Mr Arthur could not be identified as “married” on his death certificate, and Mr Obergefell could not be recorded as his surviving spouse. It was a form of separation and non-recognition that Mr Obergefell deemed “hurtful for the rest of time”.
After succeeding in the District Court of Ohio, his case was consolidated with 13 others which variously challenged laws or Constitutions banning gay marriage in the States of Michigan, Kentucky, Ohio and Tennessee. His success at District Court level was then overturned by the Sixth Circuit Court of Appeals. As many other federal courts had declared same sex marriage to be a constitutionally protected right, the issue was now ripe for Supreme Court determination.
On 10.02 am ET on 26th June 2015, that determination was published. By a majority of 5 – 4, the Supreme Court upheld the right of same-sex couples to get married throughout the country – all 50 States – saying that this right was guaranteed to them under the 14th Amendment to the Constitution of the United States.
The majority opinion was written by Justice Anthony Kennedy, who had also written the majority opinion in Lawrence v Texas, which determined that laws banning homosexual intimacy between consenting adults were unconstitutional. He was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan (the four justices commonly known as the court’s “liberal wing”). Chief Justice Roberts dissented, along with Justices Scalia, Thomas and Alito (the four reputedly more conservative justices on the court).
The Majority Opinion
The majority opinion is eloquent, and in parts very moving. In reading it, one has the sense that Justice Kennedy was acutely aware of the historic nature of this decision, and that this opinion would be pored over, analysed, attacked and revered for generations to come.
I hope I do not do a disservice to his reasoning by summarising it as follows:
After setting out the procedural history of the cases before the court, Justice Kennedy addressed the nature of marriage, which he described as being of “transcendent importance” and “essential to [humanity’s] most profound hopes and aspirations”. He also emphasised that, notwithstanding its centrality, “it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change”. In making good his point, he referred to the evolution of marriage in the United States from an arrangement made by parents on behalf of their children to an autonomous and voluntary contract, the abandonment of the law of coverture (under which a married man and woman were treated by the State as a single, male-dominated legal entity) and the lifting of bans on interracial marriage pursuant to the court’s decision in Loving v Virginia.
He then turned his attention to the 14th Amendment to the Constitution. Two clauses were at issue in the case: (1) the “Due Process Clause”, which provides that no State shall “deprive any person of life, liberty or property, without due process of law”; and (2) the “Equal Protection Clause”, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws”.
The Due Process Clause
Justice Kennedy explained that case law had established that the Due Process Clause guaranteed the protection of fundamental rights, such as those contained in the US Bill of Rights. In light of that, the question for the court was simple: was the right to marry so fundamental as to bring it within the scope of this clause of the 14th Amendment?
The obvious issue to address in answering that question was the fact that, throughout the history of the United States, marriage had been treated as limited to a relationship between a man and a woman. How could a right be fundamental if it had, by a large degree of consensus, not existed hitherto? Justice Kennedy said that, in determing the existence and scope of fundamental rights:
History and tradition guide and discipline this inquiry but do not set its outer boundaries….That method respects our history and learns from it without allowing it to rule the present.
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 future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
He went on to cite numerous cases in which the right to marry had been determined by the courts to be fundamental, and more particularly, he examined the attributes of marriage, as expressed in the case law, which justified marriage being treated in this way.
The four attributes of marriage he identified are as follows:
- The right to personal choice regarding marriage is inherent in the concept of individual autonomy, the choice to marry being “among the most intimate that an individual can make”.
- The right to marry supports a two-person union unlike any other in its importance to the committed individuals i.e. it is a profoundly important institution for two people, which dignifies couples who wish to define themselves by their commitment to each other.
- The right to marry safeguards children and families, although the ability to procreate has never been a condition of access to the right.
- Marriage is a keystone of society’s social order, and thus the status attached to being married brought with it a host of governmental rights and benefits (regarding e.g. wills, visitation rights, tax incentives and more).
All of these principles and considerations, he decided, apply with equal force to same sex couples. He was thus compelled to determine that the right to marry was a fundamental right for same-sex couples as well as heterosexual couples. He concluded:
The limitation of marriage to opposite-sex couples may long have seemed natural and just, buts its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition of laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.
The Equal Protection Clause
Justice Kennedy did not spend a great deal of time analysing the equality law underpinning this clause, or arguing that it independently gave rise to a right of same-sex couples to marry, but he did say that it frequently had “synergy” with the Court’s approach to the issues arising under the Due Process Clause, and that a conclusion that a law infringed that clause could, and in this case did, also entail an infringement of the Equal Protection Clause:
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.
Justice Kennedy also addressed a number of objections that he anticipated the majority’s approach would face. First, he acknowledged the argument that Mr Obergefell and the other petitioners were not inviting the court to expand an existing fundamental right, but rather to create an entirely new right to same-sex marriage which had not previously existed, and this was better reserved to the legislature. In response he pointed out that this was not a case about a “right to gay marriage”; it was about the right of gay people to marry in its comprehensive sense. The court had previously rejected the approach of defining rights by reference to those who sought to exercise them.
Secondly, he acknowledged the argument that the Court was pre-empting and cutting off a delicate and important democratic process, in which the question of same-sex marriage was being considered and addressed State by State. The response to this is clear. Setting aside the fact that the question has already been subject to a great deal of debate across various forums in the United States, if the court determines that a fundamental right has been breached, there is no good reason why those who seek to exercise that right should be deprived of the opportunity to do so. They have an immediate and substantial harm, which requires quick redress.
Finally, in a poignant conclusion that will be quoted at weddings and in speeches for many years to come, Justice Kennedy wrote:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is 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.
And so to the dissenting views. Unusually, individual opinions were written by each of the four dissenting Justices, although many also joined and supported the opinions of their dissenting colleagues.
The most measured dissent was written by Chief Justice John Roberts. He acknowledged the compelling facts of the particular cases before the Court, and was at pains to emphasise that his decision was based on his analysis of the law rather than any opposition to same-sex marriage per se. He argued that, in contrast, the majority had adopted an approach in which they effectively abandoned a rigorous and proper analysis of the law due to their personal belief that same-sex marriage is good and right. In his view, the Court was trespassing on matters of social policy better left to elected representatives:
Understand well what this dissent is about: It 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. The Constitution leaves no doubt about the answer.
Of course, I do not have any intimate understanding of the cases he cites, but based on his own analysis of their import and effect, his argument is in some respects compelling. He pointed out, rightly, that there is no explicit right for same-sex couples to marry in the Constitution, and so in addressing the question of whether or not same-sex marriage is protected by the Due Process Clause, the Court was being asked to assess whether or not such a right is implied as a fundamental and protected right. He pointed to numerous authorities which confirm that, when dealing with implied fundamental rights, the courts are to take a very cautious and reserved approach in their analysis. In changing an aspect of the institution of marriage that has existed for thousands of years, he considered that the majority had obviously (and grievously) abandoned that caution.
He argued that the Court’s case law on the “right to marry” was self-evidently premised on the right to enter a marriage “as traditionally defined” between a man and a woman, and although the institution of marriage had changed in various respects over time, no previous case had interfered with the traditional “core definition” of marriage as being between two people: a man and a woman. Thus, in his view, what was being argued for was not a right for same sex couples to marry, but a right for same sex couples to force States to change core aspects of their definition of marriage. No such right exists under the Constitution.
He also noted the way the majority had extracted four broad principles in favour of marriage as justifying its extension to cover same-sex couples, and demonstrated his concern with this approach by pointing out that much of the reasoning would also apply to polyamorous relationships:
Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.
Finally, he sounds a warning as to the consequences of the court’s ruling for the gay rights movement, and for the Court’s own legitimacy:
By deciding [the question of same sex marriage] under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide…[H]owever heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.
For the sake of (some semblance of) brevity, I won’t examine the opinions of the other dissenters in detail, but I do recommend you take a look – especially at the opinion of Justice Scalia, who felt compelled to write a separate opinion “to call attention to this Court’s threat to American democracy”. Long known as one of the most forthright justices, both fans and detractors alike will delight in an opinion that is imbued with typical bombast, fury, sarcasm and wit.
Another Basis for the Decision?
The judges on the Supreme Court are all exceptionally fine jurists, and so it is perhaps not surprising that in reading the various opinions, I was persuaded in turn by each one! The final feeling I was left with, however, was that the substantive decision of the majority was the right one, but that the reasoning in the dissents was clearer and perhaps more logical. I wonder, therefore, if perhaps the majority was right for reasons other than those they chose to focus upon.
It is notable, for example, that in both the majority opinion and the dissents, the focus is on the existence of otherwise of a substantive fundamental right to marry under the Due Process Clause. Much less focus is given to the effect and import of the Equal Protection Clause. In his dissent, Chief Justice Roberts wrote:
In addition to their due process argument, the petitioners contend that the Equal Protection Clause requires their States to license and recognize same sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central points seems to be that there is a “synergy” between the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other.
On reading, re-reading, and re-reading again the passages of the majority opinion in relation to the Equal Protection Clause, the Chief Justice’s criticism seems to be a fair one. Perhaps if more focus and explicit analysis had been focused on that clause, a justification for the decision may have emerged which addressed some of the minority’s fears of judicial tyranny and an inexorable slide into legalised polygamy.
To an outsider, it would not be surprising if the question of same-sex marriage was determined solely on the basis of the Equal Protection Clause since, both on its face and at its heart, the same-sex marriage debate is about equality. In no jurisdiction have gay and lesbian people actually been wanting new, extra or special rights; they have simply been asking for the same rights as their heterosexual friends. They can get married; why can’t we? Framing the question in that way brings into focus the inescapable fact that unequal treatment was, prior to Friday’s decision, being meted out based on sexual orientation, which is now largely accepted as an inherent and/or immutable characteristic. The same could not be said for those who choose to live in polyamorous relationships. Moreover, denying those in such relationships the right to enter into a multi-person marriage would not constitute unequal treatment, because they would still have the right to enter into a two-person union just like everyone else. Finally, if the majority’s opinion was based upon ensuring equal access to an existing civil institution, the judicial activism critique would appear to have less force.
Of course, it must be noted that Chief Justice Roberts dismissed the application of the Equal Protection Clause with just one sentence:
In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate interest” in “preserving the institution of marriage”.
My knowledge of American jurisprudence is nowhere near sufficient to comment on that summary of the issue, but even as a lay person for the purposes of American law, it does invite further questions. Would such an interest really be “legitimate”? Is banning same-sex marriage really “rationally related” to the goal of preserving marriage between one man and one woman? The answers to those questions may not be as obvious as the Chief Justice appears to assume.
There is so much more that could be said about this case, about the long (though others would say “rapid”) struggle that preceded it, about the political undercurrents of the decision (the US judiciary is far more politicised than judges in the United Kingdom) and the ramifications for the approaching presidential election in 2016. However, those are topics for other posts on other blogs and websites.
This post concludes by setting aside the legal issues and returning to where it started – the story of James Obergefell. As recounted by People magazine, following legal argument in the case which bears his name, he was determined to be there in the front row when the final decision was handed down. There is no published schedule for the handing down of decisions, and so on every allocated “decision day” (normally Mondays and Thursdays) he queued up in the early hours of the morning, intent on being first in line, armed only with a notebook and pen so he could hurry straight to a seat without stopping at a locker. He did so for weeks, with the Supreme Court, unusually, handing down its decision on a Friday just before the very end of its term. For Mr Obergefell, this was simply another facet of the promise he made to his husband – another way of doing everything he could to ensure their marriage was imbued with a significance and respect that matched the depth of his commitment. He doesn’t get to celebrate new benefits or rights with his partner now, or hurry to the town hall to marry before family and friends, but he does have an official record, in his home State, which acknowledges that he was married, and that he is the surviving spouse of the man he loved.
I have to say: I am delighted for him.