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Attorneys

The U.S. Supreme Court Has Spoken – The 14th Amendment Requires States to Recognize Same Sex Marriage

June 26 2015

By: Lizbeth West

In a 5-4 decision authored by Justice Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, the United State Supreme Court issued a landmark decision in Obergefell at al. v. Hodges, Director, Ohio Department of Health, et al. on June 26, 2015.

The essence of the holding is that:

1.  The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Constitution, couples of the same-sex may not be deprived of that right and that liberty;

2.  The state laws challenged by the petitioners in the consolidated cases before the Court are invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Below is a brief summary of the decision:

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 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 re­spondent state officials violated 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 U.S. Supreme Court granted review of the consolidated cases to decide once and for all whether bans against same sex marriages violate the U.S. Constitution.  The Court outlined the history of the subject now before the Court as follows:

1.  The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases. To the respond­ents, it would demean a timeless institution if marriage were extend­ed to same-sex couples. But the petitioners, far from seeking to de­value marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities, as illustrated by the petitioners’ own experiences.

2.  The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

3.  This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.”  Lawrence v. Texas, 539 U. S. 558, 575. In 2012, the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U. S. ___. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue.

According to the high Court, the fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. (cites omitted).  Further, the Court said that courts must exercise reasoned judgment in identifying interests of the person so fundamental that the state must accord them its respect. While “[h]istory and tradition guide and discipline the inquiry [they] but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

According to the Court, four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.

1.  The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving v. Virginia, 388 U. S. 1, 12 invalidated interracial marriage bans under the Due Process Clause. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.

2.  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. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S. at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567.

3.  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. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

4.  Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the states have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.

The Court said that Respondents’ argument that allowing same-sex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.

Ultimately the Court held that 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.