July 14, 2015 Articles

Supreme Court Rules in Favor of Same-Sex Marriage

By Mark Hamby

With a 5–4 majority and Justice Kennedy writing the opinion, the right to marry became a fundamental right for everyone, nationwide, including same-sex couples. The Court’s decision to review a decision out of the Sixth Circuit denying same-sex couples the right to marry or have a marriage recognized followed a string of denials by the Supreme Court to review decisions from other circuits holding in favor of the right to marry—including decisions from the Fourth, Seventh, Ninth, and Tenth Circuits. See Kitchen v. Herbert, (10th Cir. 06/25/2014) (Utah); Bishop v. Smith, (10th Cir. 07/18/2015) (Oklahoma); Bostic v. Schaefer, (4th Cir. 07/28/14) (Virginia); Baskin v. Bogan, (7th Cir. 09/04/2014) (Indiana); Wolf v. Walker, (7th Cir. 09/04/2014) (Wisconsin); Latta v. Otter, (9th Cir. 10/07/2014) (Idaho); Sevcik v. Sandoval, (9th Cir. 10/07/2014) (Nevada).

The Sixth Circuit case included decisions out of each of the Circuit’s states, Michigan, Ohio, Kentucky, and Tennessee, and was consolidated as Obergefell v. Hodges, 576 U.S. ____, (2015); Obergefell is the cases of Obergefell v. Hodges, from Ohio; Tanco v. Haslam, from Tennessee; DeBoer v. Snyder, from Michigan; and Bourke v. Beshear, from Kentucky. In Michigan and Kentucky the issue was whether the states were required to issue marriage licenses for same-sex couples. In Ohio, Tennessee, and Kentucky, the issue was whether those states were required to recognize marriages by same-sex couples married in states where same-sex marriage was legal. All four states outlawed same-sex marriage, and in all four states, the U.S. district courts had ruled the state statutes or constitutional provisions unconstitutional. The Sixth Circuit consolidated the cases and overruled the district court decisions from all four states. Then, on June 26, 2015, the Supreme Court reversed the Sixth Circuit finding that the right to marry is fundamental pursuant to the Fourteenth Amendment. As a result, it is now legal in every state for same-sex couples to marry, notwithstanding any state constitutional or statutory provisions to the contrary.

Four Principles
The Supreme Court found that four principles and traditions show marriage is a fundamental right for everyone, not just opposite-sex couples. The first principle is that the right to marriage is inherent in the concept of individual autonomy. The concept of the right to privacy with respect to decisions made regarding family life must also include the decision to enter into the foundational relationship. Citing his opinion in Lawrence v. Texas, Kennedy wrote that “[l]ike 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.” See Lawrence v. Texas, 539 U.S. 558, (2003); Obergefell v. Hodges, 576 U.S. ___, (2015), (slip opinion at 12) citing Lawrence v. Texas, 539 U.S. 558, 574 (2003).

The second principle 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 right to marry thus dignifies couples who ‘wish to define themselves by their commitment to each other.’” See United States v. Windsor, 570 U.S. ___, (2012) (slip opinion at 12). As the third basis for protecting the right to marry, the Court cited safeguarding children and families and thus drawing “meaning from related rights of childrearing, procreation, and education.” Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The Court noted that children in families in which parents cannot marry are stigmatized by knowing their families are somehow lesser and “suffer the significant material costs of being raised by unmarried parents.” The laws at issue “harm and humiliate the children of same-sex couples.” Windsor (slip opinion at 23). The fourth basis citied is that the Court’s cases and the nation’s traditions make clear that marriage is a keystone of our social order. “[M]arriage is the foundation of the family and of society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S. 190, 211 (1888).

The Court noted that relying on an historical perspective of looking at who had exercised the right in question in the past, “could serve as their own continued justification and new groups could not invoke rights once denied.” The Court had rejected that approach in other seminal cases including Loving v. Virginia, 388 U.S. 1, 12, and Lawrence v. Texas, 539 U.S. 558, 566–567.The Court noted that with all of the activity revolving around the issue there was an “enhanced understanding of the issue” and that there was no need to wait for further legislative action and that doing so could harm gays and lesbians as it had in the past. "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.” Slip Opinion at 28.

As with any Supreme Court decision, Obergefell became the law of the land when issued and applies to all cases pending before all courts. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994). The Circuits in which cases are pending, the First, Fifth, Eighth, and Eleventh Circuits, all have to address the pending cases in light of Obergefell. The Fifth Circuit has instructed the District Courts in Texas, Louisiana, and Mississippi to finalize pending cases. The First Circuit case, Conde-Vidal v. Garcia-Padilla, Case No. 3:14-cv-01253-PG, slip opinion at 11,12 (D.PR 2014), was a decision from Puerto Rico in which the district court judge dismissed a lawsuit challenging the territory’s ban based on Baker v. Nelson, 409 U.S. 810 (1972), and was explicitly overruled in Obergefell. Slip Opinion at 23. Regardless of what actions have already been taken or need to be taken, the outcomes should be in line with Obergefell.

Keywords: LGBT, litigator, litigation, same-sex marriage, equal rights, Obergefell

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