ABA President William C. Hubbard applauded the Supreme Court’s 5-4 decision June 26 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 in another state.
“The court’s decision means that now children of same-sex couples will have the security that legal marriage provides,” Hubbard said in a statement issued the same day as the decision. “Recognizing the dignity and equality of same-sex couples is consistent with the fundamental principles that undergird the rule of law: fairness, equality and liberty.”
The case came to the Supreme Court from the Sixth Circuit, which had consolidated cases from Michigan, Kentucky, Ohio and Tennessee as Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al., 576 U.S. ___ (2015). The petitioners, 14 same-sex couples and two men whose same-sex partners were deceased, claimed that their states had violated the Fourteenth Amendment by denying them the right to marry or by not fully recognizing marriages that were lawfully performed in another state. While four district courts had ruled in favor of the petitioners, the Sixth Circuit reversed those decisions and upheld the state bans.
Writing for the majority, Justice Anthony Kennedy explained that the court has long held that the right to marry is a fundamental liberty protected by the 14th Amendment’s Due Process Clause. He stated that four principles and traditions demonstrate why the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples: the right to personal choice regarding marriage is inherent in the concept of personal autonomy; the right to marry supports two-person unions unlike any other in its importance to the committed individuals; the right to marry safeguards children and families and draws meaning from related rights of childrearing, procreation and education; and marriage is the keystone of the nation’s social order.
He also emphasized that the right of same sex couples to marry is derived from the Fourteenth Amendment’s guarantee of equal protection and that there was no need to wait for further legislation, litigation and debate on the issue.
“While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislation before asserting fundamental rights,” he said.
Kennedy was joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Those dissenting from the opinion were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.
In an amicus brief filed in support of the petitioners, the ABA argued that laws “that deny same-sex couples the ability to enjoy the rights, benefits, protections and obligations of marriage violate the ‘equal protection of the laws’ guaranteed by the Fourteenth Amendment.
The brief cited numerous policies adopted by the ABA since 1973 that have advocated for the elimination of discrimination based on sexual orientation, including discrimination in family law matters. In 2010, the ABA adopted a policy urging states, territories and tribal governments to eliminate legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry. The amicus brief also addressed some of the daily harms experienced by same-sex couples and highlighted the legal difficulty, and sometimes impossibility, of working around those harms.