Obergefell v. Hodges

Obergefell v. Hodges
Docket number: 14-556
Court: United States Supreme Court
Court membership
Chief Justice John G. Roberts Associate Justices Antonin Scalia Anthony Kennedy • Clarence Thomas Ruth Bader Ginsburg • Steven G. Breyer Samuel Alito • Sonia Sotomayor • Elena Kagan

On June 26, 2015, the United States Supreme Court held in a 5-4 decision that same-sex marriage is protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Consequently, same-sex marriage bans have been struck down as unconstitutional and same-sex marriages performed out-of-state must be recognized in other states. Justice Anthony Kennedy authored the opinion and Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined.

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito each authored a dissent.

The Supreme Court limited the arguments to the following questions: "Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?" "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?"

This historic case, Obergefell v. Hodges, consolidated four same-sex marriage cases from Ohio, Tennessee, Michigan and Kentucky and picked up where the 2013 case United States v. Windsor left off. In Windsor, the court ruled that part of HR 3396 - Defense of Marriage Act (DOMA) was unconstitutional but did not address the constitutionality of same-sex marriage.

On April 28, 2015, the justices heard oral argument on whether the Fourteenth Amendment protected the right of same-sex couples to marry in Obergefell. Fred Sainz, vice president of communications at the Human Rights Campaign the largest lesbian, gay, bisexual and transgender (LGBT) organization in America, said, "If the Supreme Court decides in favor of full marriage equality, it will be the largest conferral of rights on LGBT people in the history of our country."

Correctly predicting the Supreme Court's decision, Michael Klarman, a Harvard Law professor and author of Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage, argued that "[t]he Supreme Court will likely rule that the Constitution requires that same-sex couples be admitted to the institution of marriage. In so doing, the Court will have given – as it usually does – the majority of Americans the Constitution that they want. The ruling will be widely hailed as the Brown v. Board of Education of the gay rights movement. Yet, as with Brown, the Court will be reflecting public opinion more than it shaped it. Also as with Brown, the Court will be rendering a decision that would have been nearly inconceivable only a couple of decades before it happened."

Klarman's assertion that the Supreme Court would give "the majority of Americans the Constitution that they want" by ruling in favor of the couples reflects recent public opinion polls about same-sex marriage. Polls conducted by USA Today and The Washington Post with ABC News in April 2015 indicated that 6 in 10 Americans support same-sex marriage.

Case background

The Supreme Court's ruling in United States v. Windsor led, in part, to many states legalizing same-sex marriage and set the stage for Obergefell v. Hodges. On June 26, 2013, the Supreme Court struck down part of the Defense of Marriage Act and ruled that legally married same-sex couples are entitled to receive equal treatment under federal law. The ruling required that federal benefits for legally married opposite-sex couples, including Social Security, certain tax breaks and insurance benefits, be extended to legally married same-sex couples.

Prior to the ruling, HR 3396 - Defense of Marriage Act (DOMA) stated that "no State, territory, or possession of the United States or Indian tribe shall be required to give effect to any marriage between persons of the same sex under the laws of any other such jurisdiction or to any right or claim arising from such relationship." It also established the federal definition of marriage as "only a legal union between one man and one woman as husband and wife" and spouse "as only a person of the opposite sex who is a husband or wife." The purpose of the law was to define marriage as an institution between one man and one woman and to defend marriage from being redefined and expanded. It also gave the states the right to create an alternative definition of marriage, if they chose to do so.

In the court's ruling, Justice Anthony Kennedy explained why he, and the four other justices who joined him in the majority, ruled that part of DOMA violated the Constitution. He wrote, "What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

The majority opinion was written by Justice Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. They wrote, "DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages."

Dissenting opinions were filed by Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito. The dissenting members agreed on the constitutionality of DOMA.

Although the justices struck down part of DOMA, they did not address the constitutionality of same-sex marriage. According to NPR, David Boies, an attorney who fought to overturn Proposition 8, said that "the DOMA case made it clear that the court would agree that banning gay marriage is a violation of the Constitution. 'When that case comes marriage equality will be the law of the land.'"

Petitioner: The couples

Four same-sex marriage cases were consolidated by the Supreme Court under the title Obergefell v. Hodges when the Court granted the petitioners cert on January 16, 2015. The cases were Obergefell v. Hodges (from Ohio), Tanco v. Haslam (from Tennessee), DeBoer vs. Snyder (from Michigan) and Bourke v. Beshear (from Kentucky).

According to Lyle Denniston of SCOTUSBlog, "the couples are not seeking...a constitutional right to same-sex marriage, or, in other words, a new right created especially for same-sex couples, never before recognized in American constitutional history. What they are seeking, they stress, is an equal right to enter the long-standing institution of marriage, with access to that institution being a 'fundamental right.' This simple emphasis on equality of access to an existing right is intended, in the briefs, to support both a right to equal protection under the Fourteenth Amendment and inclusion in the existing marriage right as a matter of 'due process' under that same amendment. And, in that sense, this argument is an invitation to the Court not to see what is at issue as a bold plea to fashion a new right out of whole cloth — one of the main arguments made against same-sex marriage."

Respondent: The states

Ohio and Tennessee defended the right of the states to decide whether or not to recognize same-sex marriages performed in other states. Michigan defended the right of the states to ban same-sex marriage. Kentucky defended the right to ban same-sex marriage and the right not to recognize same-sex marriage.

The states argued that "[t]he Constitution’s Fourteenth Amendment does not settle the definition of marriage, so that definition is left to the states"; that "[t]he people of the states are engaging in a robust debate about the issue, so the Court should not step in and give marriage a uniform national definition, abruptly ending that debate"; and that "[s]tate bans, either on marriage or recognition, were not passed to engage in discrimination, but simply to codify the traditional notion that marriage should be restricted to opposite-sex couples," according to Denniston.

Argument

The United States Supreme Court heard oral arguments in Obergefell v. Hodges on April 28, 2015. The court limited the argument to two questions:

• Question #1: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

• Transcript of argument for Question #1

• Audio of argument for Question #1

• Question #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?

• Transcript of argument for Question #2

• Audio of argument for Question #2

Decision

Justice Anthony Kennedy	Justice Ruth Bader Ginsburg	Justice Stephen Breyer	Justice Sonia Sotomayor	Justice Elena Kagan

Reversing the Court of Appeals for the Sixth Circuit, the Supreme Court held on June 26, 2015, that same-sex marriage is a protected right under the Constitution. State bans prohibiting same-sex marriages were struck down, and all states must recognize same-sex marriages performed out of state. The 5-4 opinion was authored by Justice Anthony Kennedy, and Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined.

Kennedy identified four "principles and traditions" that provided precedent for the protection of same-sex marriage under the Due Process Clause of the Fourteenth Amendment:

1. Personal choice in marriage "is inherent in the concept of individual autonomy."
2. Marriage is "fundamental because it supports a two-person union unlike any other in its importance to the committed individuals."
3. Marriage "safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education."
4. Marriage "is a keystone of [the country]'s social order" and there "is no difference between same- and opposite-sex couples with respect to this principle."

Kennedy also noted marriage equality can be "derived" from the Equal Protection Clause of the Fourteenth Amendment. Pointing to the interracial marriage case, Loving v. Virginia, Kennedy wrote, "Indeed, in interpreting the Equal Protection Clause, 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."

Responding to criticism that democratic debate should not have been substituted with judicial action, Kennedy noted there has been "far more deliberation than this argument acknowledges," including referenda, legislative debates, grassroots campaigns, scholarly writing, and the more than 100 amicus filings in Obergefell. Regardless, Kennedy wrote, "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."

Kennedy concluded, "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."

Dissents

Chief Justice John Roberts	Justice Antonin Scalia	Justice Clarence Thomas	Justice Samuel Alito

Chief Justice Roberts

In a dissent joined by Justices Antonin Scalia and Clarence Thomas, Chief Justice John Roberts focused his argument on whether the legality of same-sex marriage "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."

After noting that procreation was essential to the development of marriage as an institution, Roberts provided examples of marriage being defined as between a man and woman in political and judicial texts throughout history. Roberts said that even Loving v. Virginia did not change this "core meaning of marriage." Roberts also questioned "why the two-person element of the core definition of marriage may be preserved while the man-woman element may not."

Roberts concluded, "If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Justice Scalia

Although Justice Antonin Scalia joined Chief Justice Roberts' dissent in full, he wrote a separate opinion "to call attention to this Court's threat to American democracy." Justice Clarence Thomas joined.

Citing the justices' legal education, hometowns and religious background, Scalia noted the court is relatively homogenous. This matters, Scalia wrote, because the justices elected to answered a policy question rather than a judicial one in their opinion. Scalia explained that "to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation."

"With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the 'reasoned judgment' of a bare majority of this Court—we move one step closer to being reminded of our impotence," Scalia concluded.

Justice Thomas

Justice Clarence Thomas was joined by Justice Antonin Scalia in his dissent. He questioned the foundation of the majority's Due Process Clause argument. There was no "deprivation of 'life, liberty, or property'" that would properly implicate this clause, Thomas argued. "In the American legal tradition, liberty has long been understood as an individual freedom from governmental action, not as a right to a particular governmental entitlement," Thomas said.

After expressing concern that this decision will impinge on individual religious liberty, Thomas concluded, "Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on 'due process' to afford substantive rights, disregards the most plausible understanding of the 'liberty' protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society."

Justice Alito

Joined by Justices Antonin Scalia and Clarence Thomas, Justice Samuel Alito argued the majority has deprived the American people of the opportunity to debate the question of same-sex marriage. Alito wrote, "If the issue of same-sex marriage had been left ot the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas."

Alito also stated the root of marriage is procreation rather than the happiness of couples. After noting more than 40% of children in this country are born out of wedlock, Alito said, "While, for many, the attributes of marriage in 21st century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe."

Alito concluded his opinion by expressing concern about judicial overreach. "If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims," Alito cautioned.

Reaction

Following the Court's decision in Obergefell v. Hodges on June 26, 2015, President Barack Obama said, "This morning, the Supreme Court recognized that the Constitution guarantees marriage equality. In doing so, they have reaffirmed that all Americans are entitled to the equal protection of the law; that all people should be treated equally, regardless of who they are or who they love."

Acknowledging opponents of same-sex marriage, President Obama added, "I know that Americans of good will continue to hold a wide range of views on this issue. Opposition, in some cases, has been based on sincere and deeply held beliefs. All of us who welcome today’s news should be mindful of that fact and recognize different viewpoints, revere our deep commitment to religious freedom. But today should also give us hope that on the many issues with which we grapple, often painfully, real change is possible. Shift in hearts and minds is possible. And those who have come so far on their journey to equality have a responsibility to reach back and help others join them, because for all of our differences, we are one people, stronger together than we could ever be alone. That’s always been our story."

Republican Speaker of the House John Boehner was less supportive of the decision, saying, "All human beings are created equal by God and thus deserve to be treated with love, dignity and respect. I am, however, disappointed that the Supreme Court disregarded the democratically-enacted will of millions of Americans by forcing states to redefine the institution of marriage. My views are based on my upbringing and my faith. I believe that marriage is a sacred vow between one man and one woman, and I believe Americans should be able to live and work according to their beliefs."

A brief timeline of same-sex marriage

• June 26, 2015: In Obergefell v. Hodges, the United States Supreme Court held in a 5-4 decision that same-sex marriage is protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Consequently, same-sex marriages bans were struck down as unconstitutional.

• April 28, 2015: The United States Supreme Court heard oral arguments in four same-sex marriage cases from Ohio, Tennessee, Michigan and Kentucky under the consolidated title Obergefell v. Hodges.

• June 26, 2013: In United States v. Windsor, the United States Supreme Court ruled that "Section 3 of the Defense of Marriage Act is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment," according to SCOTUSBlog.

• June 26, 2013: In Hollingsworth v. Perry, the United States Supreme Court ruled that "[t]he proponents of California’s ban on same-sex marriage did not have standing to appeal the district court’s order invalidating the ban," according to SCOTUSBlog. As a result, same-sex marriage resumed in California.

• 2013: "Lawmakers in Rhode Island, Delaware and Minnesota vote to approve same-sex marriage (making a total of 12 states that legalize it, along with the District of Columbia)," according to NPR.

• November 6, 2012: Citizens of Maine, Maryland and Washington voted to legalize same-sex marriage. "Minnesotans rejected a proposed constitutional amendment to bar gay marriage—becoming only the second state in which voters had done so," according to Harvard Law professor Michael Klarman.

• 2012: "[L]egislatures in Washington, Maryland, and New Jersey passed gay-marriage bills, though Governor Chris Christie vetoed the last of these," according to Klarman.

• 2011: New York's legislature approved same-sex marriage.

• August 4, 2010: A federal judge ruled that Proposition 8 was unconstitutional and barred its enforcement.

• May 26, 2009: The California Supreme Court upheld the constitutionality of Proposition 8.

• 2009: "Legislators in Vermont, New Hampshire and Washington, D.C., legalize gay marriage. The Iowa Supreme Court strikes down the state's ban, legalizing same-sex marriage there," according to NPR.

• November 4, 2008: Voters in California approved Proposition 8, which made same-sex marriage illegal in California.

• 2008: "California's Supreme Court overturns that state's gay marriage ban in May, legalizing same-sex marriage," according to NPR.

• 2008: "Connecticut's Supreme Court rules same-sex couples have a right to marry," according to NPR.

• 2006: "New Jersey's Supreme Court rules gay couples are entitled to the same rights as heterosexual couples; the Legislature opts to legalize civil unions. Eight states pass constitutional amendments banning gay marriage," according to NPR.

• 2003: In Goodridge v. Department of Public Health, the Supreme Judicial Court in Massachusetts rejected "civil unions as 'second-class citizenship.' Massachusetts thus became the first American state—and only the fifth jurisdiction in the world—to recognize same-sex marriage," according to Klarman.

• 2003: "The U.S. Supreme Court overturns its 1986 Bowers v. Hardwick decision, ruling gays are "entitled to respect for their private lives," and strikes down a Texas sodomy law in Lawrence v. Texas," according to NPR.

• 1999: Vermont's Supreme Court "ruled that the traditional definition of marriage discriminated against same-sex couples. The court gave the legislature the option of amending the marriage law to include same-sex couples or of creating a new institution (which came to be called “civil unions”) that provided them with all of the benefits of marriage. At that time, no American state had enacted anything like civil unions," according to Klarman.

• 1998: Voters in Hawaii rejected legalizing same-sex marriage, 69 percent to 31 percent. Voters in Alaska also rejected same-sex marriage.

• September 21, 1996: President Bill Clinton signed H.R.3396 - the Defense of Marriage Act into law. The law amended "the Federal judicial code to provide that no State, territory, or possession of the United States or Indian tribe shall be required to give effect to any marriage between persons of the same sex under the laws of any other such jurisdiction or to any right or claim arising from such relationship." It also established the federal definition of marriage as "only a legal union between one man and one woman as husband and wife" and spouse "as only a person of the opposite sex who is a husband or wife."

• 1996: "In Romer v. Evans, the U.S. Supreme Court strikes down a Colorado constitutional amendment that had forbidden laws banning discrimination against gays," according to NPR.

• 1995: "Utah passes a law prohibiting same-sex marriage. More than 30 other states will follow with so-called Defense of Marriage laws," according to NPR.

• 1993: Hawaii's Supreme Court ruled that a ban on same-sex marriages "may well violate the State Constitution's prohibition against sex discrimination," although the court did not strike down the ban, according to The New York Times.

• 1991: "Three gay couples in Hawaii challenged the constitutionality of laws limiting marriage to a man and woman," according to Klarman.

• 1986: "In Bowers v. Hardwick, the U.S. Supreme Court rules that the Constitution does not protect the right of gay adults to engage in consensual sodomy in private," according to NPR.

• 1972: "In Baker v. Nelson, the U.S. Supreme Court dismisses a challenge of a ruling from Minnesota that gay couples have no constitutional right to marry, saying the appeal fails to raise a 'substantial federal question,'" according to NPR.

Public opinion on same-sex marriage

Polls conducted by The Washington Post-ABC News and USA Today in April 2015 indicated that a majority of Americans supported same-sex marriage. According to USA Today, "There have been tidal changes in public opinion toward same-sex marriage — more than a third say they have changed their views on gays and lesbians during their lifetimes — but there also is a huge generation gap. Six in 10 of those 18 to 34 support the idea, compared with fewer than four in 10 of those 65 and older."

"Overall, do you support or oppose allowing gays and lesbians to marry legally?"
Poll	Strongly Support	Somewhat Support	Somewhat Oppose	Strongly Oppose	Undecided	Margin of Error	Sample Size
Washington Post-ABC News Poll April 16-20, 2015	40%	21%	10%	25%	4%	+/-3.5	1,016
Note: A "0%" finding means the candidate was not a part of the poll. The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to editor@ballotpedia.org

"Do you strongly favor, favor, oppose, or strongly oppose allowing gays and lesbians to marry legally?"
Poll	Strongly favor	Favor	Oppose	Strongly oppose	Undecided	Margin of Error	Sample Size
USA Today/ Suffolk University Poll April 8-13, 2015	27.6%	23.7%	17.1%	17.7%	13.9%	+/-3.0	1,000
Note: A "0%" finding means the candidate was not a part of the poll. The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to editor@ballotpedia.org

Recent News

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Obergefell v. Hodges - Google News

See also

• Local government responses to Obergefell v. Hodges
• 2016 presidential candidates on Obergefell v. Hodges
• State legislative responses to Obergefell v. Hodges
• Major cases of the Supreme Court October 2014 term
• Marriage and family on the ballot
• Same-sex marriage in the federal courts
• Supreme Court of the United States
• Amendment XIV, United States Constitution
• Human Rights Campaign

External links

• Obergefell v. Hodges

• Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases

• HR 3396 - Defense of Marriage Act

• Transcript of argument for Question #1

• Audio of argument for Question #1

• Transcript of argument for Question #2

• Audio of argument for Question #2

• United States v. Windsor

• Supreme Court of the United States, Audio: United States v. Windsor