Constitutional Law

Fourteenth Amendment requires all states to license and recognize same-sex marriages.

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In Obergefell v. Hodges (2015) ___ U.S. ____, 135 S.Ct. 2584, ___ L.Ed.2d ____, 2015 WL 2473451, plaintiffs are 14 same-sex couples and two men whose same-sex partners are deceased, who seek the right to marry in their home states or to have their same-sex marriages performed elsewhere recognized in their home states. Defendants are state officials responsible for enforcing laws in those states that define marriage as the union between a man and a woman. The district courts in each of the home states ruled in plaintiffs’ favor, and defendants appealed. The Court of Appeals for the Sixth Circuit consolidated the cases and reversed the judgments of the district courts. Plaintiffs sought certiorari, and the U.S. Supreme Court granted review limited to two questions: Does the Fourteenth Amendment require a State (1) to license a marriage between two people of the same sex, or (2) to recognize a same-sex marriage licensed and performed in a State that does grant that right? Held, reversing the Court of Appeals: Yes to both questions. The Fourteenth Amendment protects the right of same-sex couples to marry under both its promise of liberty of the person and its guarantee of equal protection of the laws. (2015 WL 2473451, at pp. 17, 19.)

(a) Marriage is fundamental liberty. Marriage is a fundamental liberty protected by the United States Constitution. A long line of cases, including Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, 8 Summary (10th), Constitutional Law, §747 (invalidating a ban on interracial marriages), Zablocki v. Redhail (1978) 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618, 7 Summary (10th), Constitutional Law, §569 (invalidating a law prohibiting fathers behind in paying child support from marrying), and Turner v. Safley (1987) 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64, 7 Summary (10th), Constitutional Law, §569 (invalidating a regulation limiting the right of prison inmates to marry), “has reiterated that the right to marry is fundamental under the Due Process Clause.” (2015 WL 2473451, at p. 12.)

(b) Right under promise of liberty. There are four principles and traditions that demonstrate the reasons why the fundamental, constitutional right to marry applies with equal force to same-sex couples:

(1) “[T]he right to personal choice regarding marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. . . . Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.” (2015 WL 2473451, at p. 13.)

(2) The right to marry “supports a two-person union unlike any other in its importance to the committed individuals.” This point was central to the decision in Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, 7 Summary (10th), Constitutional Law, §558, which held that the United States Constitution protects a married couple’s right to use contraception. (2015 WL 2473451, at p. 13.) Further, in Lawrence v. Texas (2003) 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508, 7 Summary (10th), Constitutional Law, §573, this Court invalidated laws criminalizing same-sex intimacy. As stated in United States v. Windsor (2013) 570 U.S. ____, 133 S.Ct. 2675, 186 L.Ed.2d 808, 7 Summary (10th), Constitutional Law, Supp., §226C, which invalidated the Defense of Marriage Act, the right to marry “dignifies couples who ‘wish to define themselves by their commitment to each other.’” Marriage “offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” (2015 WL 2473451, at p. 14.)

(3) The right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” Excluding same-sex couples from marriage conflicts with a central premise of the right to marry, and it harms and humiliates the children of same-sex couples. “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.” (2015 WL 2473451, at p. 14.)

(4) Marriage is a "keystone of our social order.” It is the basis for an expanding list of governmental rights, benefits, and responsibilities, including taxation, inheritance and property rights, spousal privilege in the law of evidence, hospital access and medical decisionmaking, survivor and workers’ compensation benefits, health insurance, and rules relating to child custody, support, and visitation. (2015 WL 2473451, at p. 15.) By denying their right to marry, same sex couples have been excluded from the “constellation of benefits that the States have linked to marriage.” (2015 WL 2473451, at p. 16.) “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” (2015 WL 2473451, at p. 17.)

(c) Right under Equal Protection Clause. Besides burdening the liberty of same-sex couples, the challenged laws “abridge central precepts of equality. Here the marriage laws . . . 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.” (2015 WL 2473451, at p. 19.)

(d) Right is not dependent on legislation or public opinion. Fundamental rights do not depend on a vote of the People, and “individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. 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. The idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’” (2015 WL 2473451, at p. 20, quoting West Virginia Bd. of Educ. v. Barnette (1943) 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed.2d 1628, 7 Summary (10th), Constitutional Law, §536.)

(e) Recognition of same-sex marriages performed out-of-state. Because same-sex couples now have the right to marry in all States, it follows “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” (2015 WL 2473451, at p. 23.)

Four justices dissented in four opinions that question the majority’s interpretation of the Constitution and the Court’s right, without further public discourse, to make a State change its definition of marriage. (2015 WL 2473451, at pp. 23, 42, 46, 54.)

Witkin References:

Marriage between persons of the same sex. See 7 Summary (10th), Constitutional Law, Supp., §226A et seq.

The right to marry, generally. See 7 Summary (10th), Constitutional Law, §569.

Discriminatory classifications based on marital status. See 8 Summary (10th), Constitutional Law, §785.

Discriminatory classifications based on sexual orientation. See 8 Summary (10th), Constitutional Law, §798.

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Last updated
Friday, August 14, 2015