The following summary of Obergefell v. Hodges is provided for those who lack time to read the entire 100+ pages of the official opinions. This is not an evaluation, only a summary. If you want to read further on any part of the opinion, you may consult the original document, found here.
On June 26, 2015, the Supreme Court ruled that the Fourteenth Amendment to the Constitution extends to cover those who desire to marry others of the same sex. The Majority opinion, written by Justice Kennedy and joined by Ginsburg, Breyer, Sotomayor, and Kagen, relied on legal precedent, ethical judgments, and an extension of Constitutional meaning to provide their reasoning.
Justice Kennedy begins by noting changes throughout history in the institution of marriage, citing the decrease in arranged marriages and the abandonment of the law of coverture, which are evidence of “new dimensions of freedom [becoming] apparent to new generations” (2). He then focuses on the Fourteenth Amendment, whose due process clause extends to “certain personal choices central to individual dignity and autonomy, including inestimable choices defining personal identity and beliefs” (2).
Kennedy then lay out four principles that support the claim that the Due Process Clause protects the right to same-sex marriage. First, “the right to personal choice regarding marriage is inherent to the concept of individual autonomy” (3). Second, the right to marry is fundamental because it “supports a two-person union unlike any other in its importance to the committed individuals” (3). Third, marriage protects children and families and creates more stable environments for children, which Kennedy applies to the children of same-sex married couples by noting that the inability of same-sex couples to marry creates a less stable and stigmatized condition for their children. Fourth, marriage is a “keystone of the Nation’s social order,” and there is “no difference between same- and opposite-sex couples with respect to this principle” (4).
Building off these four principles, Kennedy claims same-sex couples are being barred from a fundamental individual right to choose who they wish they marry, which serves to “disrespect and subordinate gays and lesbians” (4). This is the basis on which Kennedy claims the Due Process Clause is being violated by barring same-sex marriage.
Kennedy acknowledges that the Constitution “contemplates” that democracy is the proper means of change, but that when individual rights are being violated, the courts need not wait legislative action. He cites as precedent West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943): “This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”
Another ground for Kennedy’s reasoning was his belief that gays and lesbians have been harmed and humiliated by our laws that keep them from marrying those of the same sex. He cites Bowers, which upheld laws criminalizing homosexual sexual acts in order to allow the legislative process to handle the laws. Bowers was overturned in Lawrence, which held that the individual rights of homosexuals were being infringed upon. Kennedy notes that “Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation” (25).
One ethical judgment Kennedy makes is that gays and lesbians have been harmed and humiliated by our laws that keep them from marrying those of the same sex. He cites Bowers, which upheld laws criminalizing homosexual sexual acts in order to allow the legislative process to handle the laws. Bowers was overturned in Lawrence, which held that the individual rights of homosexuals were being infringed upon. Kennedy notes that “Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation” (25).
At the end, Kennedy addresses the concern about religious freedom and the First Amendment. He claims religions and religious persons “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered” (27).No time to read 100+ pages of Obergefell v. Hodges? Read and share this 2,000 word summary Click To Tweet
Chief Justice Roberts wrote the main dissenting opinion. His main concern is the threat to justice and liberty that the Majority’s actions constituted. His view is that five of nine unelected judges made the ethical judgment that individual rights were being violated, so they reinterpreted the Constitution to find a way to protect the individuals. “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept” (Roberts’ dissenting opinion, p. 2).
In effect, the Supreme Court has placed itself above the legislative branch as opposed to beside it. The courts are to exercise “neither force nor will but merely judgment” (A. Hamilton, no. 78; Roberts, p. 2). A further harm done for the LGBT community is that, since the courts have decided what has been an ongoing debate among the public, such a decision will close minds to being won over.
Responding to the claim that individuals have a fundamental right to marry whomever they wish, Roberts notes this decision was based “not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become” (dissenting, p. 3). In fact the only qualification the Majority puts on individual rights is their own “reasoned judgment” which leads to “new insight” into the “nature of injustice.” Similarly, he notes that the right to individual expression of identity is not an enumerated right in the Constitution, but an implied right if it is one, and unelected judges should only very tentatively discern fundamental rights, “lest the liberty liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997).
Regarding the claim to exclusion of gays which leads to social stigmatization, Chief Justice Roberts notes that marriage in prehistoric times did not arise along with the desires to exclude gays and lesbians, but it arose “in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship” (Roberts, dissent, p. 5).
He also rebuts Kennedy’s claim that marriage is on an inevitable and positive evolution in definition toward greater freedom. Since Webster’s first dictionary, and throughout legal tradition and even in the United States’ courts, marriage has been defined at its core as the union of a man and a woman. While some elements of marriage have changed, such as the ones the Majority cited, the core has always remained the same until 2001 (Roberts, dissent, 8).
The Majority opinion claims that all those who have voted against legalizing gay marriage “have acted to ‘lock … out,’ ‘disparage,’ ‘disrespect and subordinate,’ and inflict ‘[d]ignitary wounds’ upon their gay and lesbian neighbors” (Roberts, dissent, 29). This amounts to claiming bigotry against those who simply agreed with the definition of marriage as defined since the beginning of its creation, in every culture known to man. This legitimization by the Supreme Court of the claim of bigotry against those who advocate for traditional marriage will have lasting effects.
Part of the legal reasoning used by the Majority is a few cases in which the Supreme Court overturned state laws barring interracial marriage, marriage involving those who owe child support, and marriage of prisoners. But as Chief Justice Roberts points out, all of these were instances of particular restrictions on access to marriage as traditionally defined violating due process (Roberts, dissent, 16). Nor do the bans on gay marriage violate any privacy laws, such as laws that criminalized sodomy, which would have allowed the government to intrude into peoples’ homes.
Another problem with the legal basis of this decision is that the Majority has declared the right to pursue one’s own autonomy and decide for oneself whom to marry, and that cannot therefore exclude those who want to use their autonomy for polygamous marriages. The only way the Majority could curtail this conclusion is to use their own “reasoned judgment” to make the ethical decision that polygamy is wrong. But as Roberts argues, the move from opposite-sex to same-sex marriage is a much bigger step than two-person to three-person (or more) marriage, which has deep roots in many cultures. Therefore, since the move to same-sex marriage is far greater than the move to polygamy, there really is no reason to exclude it now (dissent, 20).
The Majority also notes that this decision will not harm any traditional marriages or those seeking traditional marriage. Gay marriages, if legalized, “would pose no risk of harm to themselves or third parties” (Kennedy, 27). But Roberts rebuts that this type of argument belongs to realm of moral philosophy rather than to the realm of law. Whether a law will effect the public is an issue for the legislature as they consider what laws will benefit society and create them. The court’s job is not to consider moral philosophy and create law based on what the court believes to be ethically superior (Roberts, dissent, 22).
The last issue addressed by Roberts is the threat to religious liberty. The Majority claimed religions and religious persons “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered” (27). this decision will have serious consequences of those religious persons or agencies who refuse to acknowledge the legitimacy of or give benefits to those who their religion does not allow them to believe are “married.” Religious colleges that provide cheaper housing to married couples may not provide it to same-sex married couples. Religious adoption agencies may not wish to allow same-sex spouses to adopt children. The Solicitor General acknowledged in the oral arguments that the tax exemptions of some religious institutions may be in question if they oppose gay marriage or the provision of benefits to same-sex spouses.
While Justice Scalia joined Roberts’ dissent in full, he wrote separately to highlight the threat to American democracy that this decision created. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court” (Scalia, dissent, 2). When the Majority stated that “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions …,” they could have concluded that our legal process allows for Constitutional amendments and for the legislative procedure by which democratic participants could persuade one another of the justice of their position. But instead, despite these two legal means entrenched in our heritage, tradition, and Constitution, the Court took it upon itself (rather, upon the five unelected Justices of the majority), to state what freedom in all of its dimensions does look like as “we” (the majority) learn the meaning of freedom.
Applying the Fourteenth Amendment to this case is problematic because the framers of the Fourteenth Amendment had no conception of gay marriage. No states allowed gay marriage in 1868 when it was ratified, so the authorial intention of the Fourteenth Amendment would not allow for an application to the right to gay marriage (Scalia, dissent, 4).
Scalia scathingly concludes, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy” (dissent, 5). But how far can the courts impose its own will on the people?
Thomas’s dissent argued that the Majority has misunderstood the definition of “liberty” in the Due Process clause of the Constitution, which should be understood in its historical context as freedom from governmental restrictions, rather than freedom to governmental benefits. He bewails that “the majority invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect” (dissent, 2). He supports his claim to the correct definition of liberty with a long history of the legal definition of freedom, which may also be supported by the traditional Western political tradition of defining “liberty” as freedom from coercion of the government.
Thomas also believed the majority misunderstood the nature of religious freedom according to the First Amendment, which not only gives the freedom to teach their religious beliefs, but actually gives the “freedom of action in matters of religious generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice” (dissent, 15-16).
Alito’s dissent covered much the same objections. But he does answer the question asked by Scalia, how far the courts can impose its own will on the people: “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate” (dissent, 7).