The Right of Same-Sex Marriage

The United States Supreme Court Upholds the Right of Same-Sex Couples to Marry.

On June 26, 2015, the United States Supreme Court, in a 5-4 decision, authored by Justice Kennedy, upheld the right to marry as a fundamental right in the U. S. Constitution, no matter the genders of the two who wish to marry.  There were several appellants in this case, which was named in short Obergefell v. Hodges. One man from Ohio had married his husband in another state, and then his husband had died. Ohio did not recognize the marriage, and therefore, he could not be designated as the surviving spouse in Ohio. Two women were raising four special needs children in Michigan, but the state would not recognize their marriage and thus would allow only one of the spouses to be the legal adoptive parent of each child. A couple, two men in Tennessee, one of whom is a veteran of the Afghanistan conflict, were legally married in New York, but their home state of Tennessee would not recognize them as legally married.

What does the Constitution say about marriage? The word “marriage” does not appear in the Constitution. This for some is the end of the debate. However, the 200 year history of the United States, and decisions of the US Supreme Court throughout that history, make it clear that what the Constitution says is what the Supreme Court says that it says. Justice Kennedy’s opinion traces the history of the institution of marriage, and its importance in human society, and then explores the former decisions of the Supreme Court on issues of marriage, finding many precedents for the majority opinion in those decisions. Finally, and what some would say is obvious, the Equal Protection Clause and the Due Process Clause in the Fourteenth Amendment to the Constitution provide the framework for requiring that states cannot deny the right to marry to citizens of their own states, nor refuse to recognize a legal marriage performed in another state.

Justice Kennedy’s decision is eloquent. He describes the history of the institution of marriage and how it has changed. Even in the twentieth century, changes in the role and status of women in the US affected marriage, particularly in the area of property rights. In the United States, we no longer accept that marriages should be arranged by parents, rather than by the couple themselves. Likewise in the twentieth century, attitudes toward homosexuality and gender identity began to change, and today there is much greater acceptance of one’s sexual identity, no matter what it may be. As early as 1993, the state of Hawaii found discrimination in banning same-sex marriage, and in 2003, the state of Massachusetts held that same-sex couples had the right to marry in that state. Justice Kennedy lists four principles and traditions that demonstrate that the reason to marry is fundamental under the Constitution, and thus cannot be denied to same-sex couples. To begin with, the right to personal choice to marry is inherent in the concept of individual autonomy. The second principal is that the choice to marry supports a two-person union unlike any other available to two committed individuals. Thirdly, marriage safeguards children and families with stability. Finally, marriage is a keystone of the social order of our country. Therefore, denying the right to marry to some people locks them out of this bed rock institution in our society.

One of the objections in the four dissents filed was that only 5 people decided what should be the law in all 50 states. Of course, there have been many close decisions in the Supreme Court, and several of those decisions have had milestone impacts on life in the US. On the issue of marriage, the Supreme Court has previously ruled that states could not ban interracial marriage (Loving v. Virginia), or that states could not prohibit a married couple from seeking contraception (Griswold v. Connecticut), or that prisoners could not be denied the right to marry (Turner v. Safley). Most recently, the Supreme Court ruled that the federal Defense of Marriage Act was unconstitutional in that it caused same-sex couples to be taxed unfairly at the federal level (United States v. Windsor). Even if all of those cases had been decided unanimously, it would still be 9 justices making law for the country. And of course, that is their job.

Ultimately the decision was driven by the dramatic examples offered in the lives of the appellants, and the unfairness in their being denied a fundamental right in the Constitution. The dissents called for more time to be spent in the states working on legislative solutions, or raised an alarm that this decision would change the nature of marriage as we know it. Justice Kennedy addressed the vast amount of energy that has been spent in the last several years raising public awareness of the injustice to same-sex couples, and the numerous carefully written judicial opinions in both state and federal courts. This was not a decision made without historical precedent or context. It is a good decision, and it should put to rest a great deal of uncertainty and unfairness that has lasted too long.