August 12, 2015
(1) The Obergefell Ruling has 2 parts.
First, all states must permit same-sex marriage. Second, all states, even those that previously banned gay marriage, must recognize same-sex marriages performed in other states because “[t]here is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”
(2) The right of same sex couples to marry is now a ”fundamental right.”
During the 20th Century, the Supreme Court has recognized a limited number of fundamental rights based on the reasoning that no State shall “deprive any person of life, liberty, or property without due process of law.” Marriage has long been recognized as part of a bundle of “fundamental rights” based upon the right to privacy and autonomy. Among the rights recognized as part of bundle are intimacy, birth control, parenthood, and childrearing. Now, same-sex couples have a fundamental right to marriage that is equal to that of opposite sex couples. The ruling also means that individual states may not violate this right, either by either denying issuance of a marriage license or by refusing to recognize a marriage lawfully performed in another state.
Kennedy stated that these rights are not just based on who held them in the past; rather, “[t]hey rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”
(3) The Court identifies four reasons that marriage – including same-sex marriage – is fundamental.
After giving a historical rundown of the changes to the concept of “marriage” that have occurred during the 20th Century, Justice Kennedy lists four reasons why marriage is a fundamental right to illuminate why same sex marriage should be treated the same as opposite sex marriage.
- Personal Choice. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (p. 13.)
- Uniqueness. Marriage “supports a two-person union unlike any other in its importance to the committed individuals.” (p. 13.)
- Protection of Children and Families. The Court states that not only do children strongly benefit from laws bestowing benefits upon married couples, but they also benefit from the emotional stability provided by a legal recognition of their parents’ union.
- Benefits of Marriage. Marriage is a “building block of our national community” and cites the many varied benefits a married couple is granted by the state. (p. 16.) These include taxation, inheritance, medical benefits and hospital visitation rights, child custody, adoption rights, and many more. Interestingly, the Court states that the more benefits that are granted to married couples, the greater the injustice to deny those same benefits to same-sex couples.
(4) The Wait-and-See Approach isn’t appropriate for same-sex marriage.
In the majority’s opinion, there has already been enough democratic discourse, litigation, and societal discussion to warrant an enhanced understanding of the issue. The majority held that our constitutional system permits people to assert fundamental rights without waiting for legislative action ensuring those rights. “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.” (p. 24)
(5) The Court openly acknowledges that marriage was traditionally defined as between a “man and a woman”
During oral arguments, the Petitioners argued that relationships have existed for centuries, and that it is incorrect to limit marriage to opposite sex couples. During oral arguments, Justice Kennedy appeared to be having none of this, pointing out, “This definition [between a man and a woman] has been with us for millennia, and it’s very difficult for the Court to say, oh, well, we we know better.”
Justice Kennedy, writing for the Majority, appears to have engaged with this argument rather than sidestepping it when it explained that the “wait-and-see” approach was not suitable to this issue. Thus, as the dissenters have pointed out, the Court has knowingly taken the decision out of the hands of the democratic process, and has instead placed the status of “fundamental rights” above the rights of the electorate to have their say on the matter.
(6) This decision is part of an overarching conflict about federalism and the role of the Supreme Court.
Today’s decision highlights what has been a major struggle both within the Court and among the public at large: how to confront societal issues which may not be traditionally thought of as “fundamental rights”, but are nonetheless worthy of protection. The majority appears to value fundamental rights as the most important consideration for a judge. However, the dissenters urge judicial restraint. They accuse the majority of creating new fundamental rights where they previously did not exist. Thus, this is a classic case of conservative and liberal judges butting heads on the clichéd question of whether the Constitution is a living breathing document, or whether it is static. We’ve seen this debate arise in the context of gun rights, campaign contributions, “SCOTUScare,” and today’s decision appears to have added further fuel to the fire.
(7) The Court offers no guidance on a “standard of review.”
While the Court refers in depth to same-sex marriage as a fundamental right, it does not use the traditional language with which the legal community is familiar. Generally, a debate about the 14th Amendment begins with a law which affects a certain category of rights. The reviewing Court will then apply an appropriate standard of review.
A fundamental right is generally reviewed under “strict scrutiny” – it may not be infringed upon unless a state has a compelling reason to do so, and the law is narrowly tailored to meet that goal. However, the Court does not follow this formula in its opinion. Thus, any of the 14 states that banned gay marriage may continue to attempt to implement restrictions. These restrictions will be challenged, but how a reviewing court should analyze such a challenge is unclear.
(8) The Court’s discussion of the Equal Protection Clause may cause confusion.
In what appears to be an attempt to cover all bases, the Court states that the Equal Protection clause of the Fourteenth Amendment provides an alternative basis for the Court’s decision. The majority points to a vague “connection” between the Due Process and Equal Protection clauses of the Constitution to support its position that a law imposing upon the rights of same sex marriage could be challenged under either Due Process or Equal Protection. However, as Justice Roberts points out in his dissent, “[T]he majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position.” (Roberts dissent, pp. 23-24.)
(9) The dissenters are VERY upset.
Unsurprisingly to those in the legal community, the conservative justices pulled no punches. Chief Justice John Roberts wrote the first dissenting opinion, and dissents followed by Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito. Scalia characterizes the majority’s decision as “lacking even a thin veneer of law.” He then proceeded to characterize the majority’s opinion as “a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect.” (Scalia dissent, pg. 4.)
Chief Justice Roberts’ dissent is brimming with derisive comments. However, he saved his harshest “burn” for the last paragraph. He urged celebration by same-sex proponents, urging, “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.”
(10) The dissenters are worried, and they think you should be too.
The dissenters, despite their sharp tongues, are clearly worried. They are worried about religious freedom; about states’ rights; about the erosion of the democratic process; and arguably, what worries them the most is how this case might define a “new role” for the Supreme Court. Thus, this case is not a simple story of right or wrong. Rather, it will likely become fodder for legal commentary for many years.