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. The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
–Justice Anthony Kennedy, Obergefell v. Hodges
Starting in 2012, Mr. Schoemer has asked me to write on the major decisions rendered by the United States Supreme Court. I look at it as the one time a year that an attorney who spends the better part of his days assisting the launch of breweries and distilleries and providing assistance to a cadre of retired professional athletes on a wide variety of legal needs impersonates a Constitutional scholar.
Normally I can accomplish the task in a single post. This year, however, it’s going to take two, as there is so much to discuss with Obergefell v. Hodges, the case which has legalized same-sex marriage in all fifty states, that I’m going to have to address the other big cases – including the Court’s latest decision on the Patient Protection and Affordable Care Act (aka “Obamacare”) – in a second installment.
Before I dig into Justice Anthony Kennedy’s opinion in Obergefell, I want to provide some background on the United States Supreme Court, which you may hear referred to from time to time as “SCOTUS.” The Supreme Court of the United States was established pursuant to Article III of the United States Constitution in 1789 as the highest federal court in the United States. It has ultimate (and largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, plus original jurisdiction over a small range of cases. In the legal system of the United States, the Supreme Court is the final interpreter of federal constitutional law, although it may only act within the context of a case in which it has jurisdiction.
The Court consists of a chief justice and eight associate justices who are nominated by the President and confirmed by the Senate. Once appointed, justices have life tenure unless they resign, retire, take senior status, or are removed after impeachment (though no justice has ever been removed). In modern discourse, the justices are often categorized as having conservative, moderate, or liberal philosophies of law and of judicial interpretation. Each justice has one vote, and while many cases are decided unanimously, many of the highest profile cases often expose ideological beliefs that track with those philosophical or political categories. The Court meets in the United States Supreme Court Building in Washington, D.C.
Of the nine justices on the current Court, two were appointed by President Obama (Justice Elena Kagan and Justice Sonia Sotomayor), two others (Justice Samuel Alito and Chief Justice John Roberts) were appointed by President George W. Bush. Justices Stephen Breyer and Ruth Bader Ginsburg were appointed by President Clinton, Justice Clarence Thomas was appointed by President George H.W. Bush, and the final two Justices that comprise the current Court – Justices Antonin Scalia and Anthony Kennedy – were appointed by President Reagan. In case you’re counting, that’s four Democratic appointees and five Republican appointees.
In recent years – particularly since President Reagan’s nomination of Judge Robert Bork to the Court in 1987 – Senate confirmation hearings have been contentious. Back in 1987, the Democratic controlled Senate refused to confirm Judge Bork, and President Reagan ultimately put forth now Justice Kennedy instead. Since that time, whenever there has been a President who belongs to one party and a Senate controlled by the other party (which more often than not is the case), a nominee’s views on “hot button” issues – abortion, civil rights, Second Amendment rights, etc. – can transform the hearings from a review of the nominee’s credentials to serve on the Court to theoretical vote counting should one of these issues hit the Court’s docket.
Contrary to what some might believe, there is so much more to a Supreme Court ruling than just the ruling in that particular case. The Court takes on cases with far reaching applications for our rights as citizens. Also, the Court is not ignorant of the overall political mood of the country, and some of its decisions in this term tend to reflect the growing uneasiness of the size and scope of the government’s intrusion into our lives.
With that being said, let’s look at Obergefell v. Hodges:
Interestingly enough, the Obergefell ruling has a significant Minnesota connection. The Minnesota Supreme Court was one of the first in the nation to rule on the issue of marriage between same-sex couples. The Baker v. Nelson decision held that Minnesota Statutes prohibited marriages between same-sex partners. The case was appealed to the United States Supreme Court which in turn issued a one sentence dismissal of the appeal that stated, “The appeal is dismissed for want of a substantial federal question.” Obergefell overrules the Baker decision.
With respect to the legal status of gays and lesbians in the United States, and besides the summary dismissal of the Baker case in 1972, the Supreme Court has addressed the topic on at least four separate occasions. The first of these cases is Bowers v. Hardwick (1986) which upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans, the Court invalidated an amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas.
The most recent of these cases prior to Obergefell was decided just two years ago, and set the stage for the most recent ruling. In 1996, with the State of Hawaii moving to legalize same-sex marriage, the Defense of Marriage Act (“DOMA”) was passed by the U.S. House and Senate and signed into law by President Clinton. In 2013, the Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples “who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.”
After Windsor, to even the most casual follower of the Supreme Court, it was only a matter of time until the case reached the Court. As it turned out, Obergefell v. Hodges will go down in the annals of history as the case.
The Facts and Procedure
Unlike Minnesota, Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners in Obergefell, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that these States violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed.
The Court’s Opinion
Justice Kennedy authored the opinion of the majority, and even a casual read of his words gives one the impression that he knows that this is a decision that will be in every Constitutional Law casebook until the end of time.
The key Constitutional provision involved in Obergefell is the Due Process Clause of the Fourteenth Amendment, which provides that no State “shall deprive any person of life, liberty, or property, without due process of law.” Justice Kennedy writes that “[t]he fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.” He further writes that “these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”
To support the Court’s decision in Obergefell that marriage is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment, Justice Kennedy lays out four principles, which I will quote here verbatim:
- “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy…. 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.”
- “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
- “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”
- “Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”
And thus, the majority says, the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Chief Justice Roberts, and Justices Scalia, Alito and Thomas each dissented from the majority’s opinion and authored separate dissents. The Chief Justice, and Justices Scalia and Alito have similar themes to their dissents; i.e., that the debate over same-sex debate has been ongoing within the states and the courts should stay out of those debates and allow democracy to take its course. If, however, one accepts the premise that marriage is a fundamental right guaranteed under the Fourteenth Amendment, allowing states to decide whether to legalize same-sex marriage is not a workable solution.
Justice Thomas’ dissent takes a different approach. His objection is that the Due Process Clause of the Fourteenth Amendment should not be read to guarantee substantive rights.
What Does it Mean?
At its heart, the Court’s holding in Obergefell means that same-sex couples now have the legal right to be married in all fifty states. Prior to Obergefell, same-sex couples could legally marry only where the state permitted it, and if a state defined marriage as between a man and a woman, not only could a same-sex couple not be married, but even if they were married in a state which did allow same-sex marriage, their home state would not have to recognize it. Obergefell changes that. The Defense of Marriage Act is now relegated to the ash heap of history as of June 26, 2015.
What Does the Future Hold?
As with many issues decided by the Supreme Court, Obergefell, while establishing the fundamental right of same-sex couples to marry, will likely not be the last word on this issue.
Based upon the reaction to the decision thus far, one can foresee at least three issues which may be resolved by future Supreme Courts:
1. First Amendment Issues: The First Amendment prohibits the making of any law impeding the free exercise of religion. Will the Court’s ruling in Obergefell require churches, synagogues and mosques who espouse religious beliefs that include opposition to same-sex marriage to recognize such unions? Minnesota’s marriage law, for example, provides the following provisions – which, by the way, were included at great political expense by then-Rep. David Fitzsimmons (and his vote in favor of the law in order to preserve his amendments cost him the Republican endorsement in 2014):
Each religious organization, association, or society has exclusive control over its own theological doctrine, policy, teachings, and beliefs regarding who may marry within that faith. A licensed or ordained member of the clergy or other person authorized by section 517.04 to solemnize a civil marriage is not subject to any fine, penalty, or civil liability for failing or refusing to solemnize a civil marriage for any reason (M.S. 517.09, Subd. 2)
Except for secular business activities engaged in by a religious association, religious corporation, or religious society, the conduct of which is unrelated to the religious and educational purposes for which it is organized, no religious association, religious corporation, or religious society shall be required to provide goods or services at the solemnization or celebration of any civil marriage or be subject to civil liability or any action by the state that penalizes, fines, or withholds any benefit to the religious association, religious corporation, or religious society under the laws of this state, including, but not limited to, laws regarding tax exempt status, for failing or refusing to provide goods or services at the solemnization or celebration of any civil marriage, if providing such goods or services would cause the religious association, religious corporation, or religious society to violate their sincerely held religious beliefs (M.S. 517.09, Subd. 3(a)).
What of such provisions post-Obergefell? Unfortunately, Justice Kennedy’s opinion does not address this issue, save for one paragraph which states that
it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
2. Dealing with Objector States: some state Attorneys General from states which, prior to the Obergefell decision, prohibited same-sex marriage, have expressed a desire to repeal their state’s civil marriage statutes, thereby relegating marriage in their state to only be recognized by a religious institution. Should any state actually go through with such an act, it will certainly be challenged and the Court will have the opportunity to decide whether, if marriage is, as the Court indicates, a fundamental right, must a state issue marriage licenses?
3. Others Which Could Benefit from the Court’s Reasoning: some Second Amendment proponents have already seized on the Court’s Due Process language in Obergefell – particularly the rights of married same-sex couples who travel to a state in which same-sex marriage was not legal – to argue that the same reasoning applies to concealed carry laws (i.e., if the right to bear arms is, as the Court has held, also a fundamental right, an individual’s right to carry a concealed weapon, if legal in one state, should be legal in all states). This argument falls under the “laws of unintended consequences” and could conceivably wind up in front of the Court in the future as well.
So there you have it. Everything you ever wanted to know about the Supreme Court’s decision on same-sex marriage and didn’t know where to ask. Stay tuned for Part II of my annual SCOTUS review where we’ll delve into cases involving raisins, Spider-Man toys, the Environmental Protection Agency and, of course, Obamacare.
Jeffrey O’Brien is a shareholder and attorney at Lommen Abdo, P.A. He can be reached via email at firstname.lastname@example.org.