Obergefell v. Hodges - 135 S. Ct.

2584 (2015)

Brief Fact:

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one
woman. Fourteen same-sex couples, and two men whose same-sex partners were 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.

Extended Version:

In Ohio, John Arthur was suffering from the latter stages of amyotrophic lateral sclerosis (ALS), a terminal
illness. Recognizing the need to make critical end-of-life decisions, Arthur sought to have the Ohio Registrar
identify his partner, James Obergefell, as his surviving spouse on his death certificate so that Obergefell
could receive the benefits due to a spouse. Arthur and Obergefell had married in Maryland two years earlier.
The Registrar planned to certify Obergefell as Arthur's spouse on the death certificate, believing that
discrimination against same-sex couples was unconstitutional. The state of Ohio prohibited same-sex
marriage, however, and its Attorney General's Office mobilized to defend that ban.

Also in Ohio, four same-sex couples brought a claim seeking the right to list both parents on the birth
certificates of their children. In this case, known as Henry v. Wymyslo, three of the couples lived in Ohio,
and all of the children were born there. Henry v. Wymyslo was heard before the same judge who reviewed
the Obergefell case, District Judge Timothy S. Black.

In Tennessee, four same-sex couples sued to force the state to recognize their marriages, which had been
performed in California and New York. (One of the New York couples later left the case.) They argued that
Tennessee's refusal to recognize same-sex marriages violated its own rule that a marriage validated where
it is celebrated is valid everywhere.

In Michigan, April DeBoer and Jayne Rowse brought a claim on behalf of themselves and three children
whom they sought to jointly adopt. All of the children, one boy and two girls, had special needs. The two
nurses challenged a state law prohibiting adoption by same-sex couples and limiting second-parent
adoption to married couples, while defining marriage as between opposite-sex individuals only.

In Kentucky, Gregory Bourke and Michael DeLeon brought a claim on behalf of themselves and DeLeon's
two adopted children. Three other couples, one with four children, joined their claim. While Bourke and
DeLeon were legally married in Ontario, Canada, the other couples were married in Iowa, California, and
Connecticut.

The couples prevailed in the federal district courts of all four states. In Obergefell, District Judge Black
issued a temporary restraining order, which the state did not appeal, and planned oral arguments on
whether a permanent injunction should be granted. Unfortunately, Arthur died before arguments were held,
and the state moved within a week to dismiss the case as moot. Black denied the motion and ruled two
months later that Ohio must recognize same-sex marriages performed in other states on death certificates.
He also issued an order in Henry v. Wymyslo that required states to recognize same-sex marriages
performed in other states, although he stayed the enforcement of his ruling with respect to matters other
than the birth certificates sought in this specific case.
All four of these cases were appealed to the Sixth Circuit, which reversed the trial court decisions in each
of them and reinstated the state bans on same-sex marriage. (Some observers, including the dissenting
justice in the Sixth Circuit's 2-1 decision, speculated that the court took this view deliberately to force the
Supreme Court to resolve the ensuing circuit split and provide a definitive answer on the issue of marriage
equality.) The Supreme Court then consolidated the cases for review. Since the federal government
previously had announced its support for marriage equality, U.S. Solicitor General Donald Verrilli, Jr. joined
the plaintiffs' lawyers for oral argument before the Court.

Issues:
1. Does the Fourteenth Amendment require a state to license a marriage between two people of the
same sex?

2. Does the Fourteenth Amendment require a state to recognize a same-sex marriage licensed and
performed in another state that allows same-sex marriage?

Held:

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.

Reasoning: (Majority: Anthony M. Kennedy (Author); Ruth Bader Ginsburg; Stephen G. Breyer; Sonia
Sotomayor; and Elena Kagan)

 History Shows that Same-Sex Marriage Must Be Permitted

The fact that same-sex couples desire to participate in the institution of marriage shows their deep respect
for the institution. Thus, opponents of same-sex marriage are wrong to claim that allowing same-sex
couples to marry demeans the institution.

Also, though the institution of marriage has been around for centuries, its history has been characterized
by change. Arranged marriages, the law of coverture, and other antiquated notions of marriage have given
way to more modern conceptions of the institution. Such evolution has not weakened, but rather
strengthened, the institution. In fact, the acceptance of same-sex couples over the last several decades
shows that public attitudes shift over time.

 Same-Sex Marriage is a Right Under the Due Process Clause

Requiring states to license same-sex marriage is grounded in the Fourteenth Amendment’s Due Process
clause. The right to marry, including for same-sex couples, is fundamental under the Constitution for four
reasons: (i) individual autonomy dictates our personal choice on who to marry; (ii) we have a right to enjoy
intimate association; (iii) it protects children and families, because children suffer if they are raised by
unmarried parents; (iv) marriage is a keystone to our nation’s social order.

 Same-Sex Marriage is a Right Under Equal Protection

The Fourteenth Amendment’s guarantee of equal protection also requires that all states license same-sex
marriage. Burdening the liberty of same-sex couples, but not that of opposite-sex couples, shows that
current laws are inherently unequal.
  Waiting for Further Legislative Action is Untenable

The desire to wait for political/legislative action would be unwise in this case because it would amount to
allowing further discrimination against same-sex couples. The Court sees immediate harm being inflicted
upon the petitioners due to the laws at issue in the case. Therefore, it would be improper to wait any longer
to remedy that harm, particularly when the laws at issue infringe upon the petitioners’ fundamental right to
marry.

Finally, since same-sex couples may now exercise the fundamental right to marry in all States, there 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.

Dissenting Opinions:

Dissenting Opinion (Roberts):

Even if allowing same-sex marriage is rooted in fairness, it is not addressed by the

Constitution. Accordingly, the decision on whether to allow same-sex marriage should be left up to the
states. Other Court expansions of marriage laws are not applicable here because they did not change the
very definition of marriage. Further, the majority opinion relies on an overly expansive view of the
Fourteenth Amendment’s Due Process and Equal Protection Clauses. The Court should not go too far into
judicial policymaking.

Dissenting Opinion (Scalia):

The majority opinion overstepped the Court’s authority by making a legislative determination. Rather, it is
for the states to make a legislative determination about how marriage is defined, and the Constitution
leaves that determination to the states.

Dissenting Opinion (Thomas):

The legislative history of the due process clauses in the Fifth and Fourteenth Amendments was rooted in
retraining government power, not granting entitlements. The majority decision also infringes on religious
rights. The states, through the legislative process, should be allowed to make that judgment between
competing interests of same-sex couples and religious communities.

Dissenting Opinion (Alito):

Because the Constitution does not address the right to marry, it left that determination to the states. The
majority creates a new right here, which is a dangerous departure from proper judicial authority under the
Constitution.

Case Commentary
This decision essentially ends the debate over whether same-sex marriage is legal or constitutionally
required. It also marks the endpoint of the following 20-year trajectory in which the Court gradually
expanded the scope of rights for America's LGBTQ+ community.

The United States becomes the 23rd country to recognize marriage equality, joining Argentina, Belgium,
Brazil, Canada, Denmark, the United Kingdom (except for Northern Ireland), Finland, France, French
Guiana, Greenland, Iceland, Ireland, Luxembourg, Mexico, the Netherlands, New Zealand, Norway,
Portugal, South Africa, Spain, Sweden, and Uruguay.