ESSAY | LGBTQ POLITICS

On the Supreme Court’s Obergefell Decision Establishing Marriage Equality

Here We Examine the Obergefell v Hodges Majority Opinion in Depth, Then Examine the Four Dissenting Opinions.

Author’s Note: This material was originally published in the author’s long, three-part answer on Quora to the question “What are all the argumements against gay marriage?”.

This is the second in a three-article series. Links to the other two may be found at the end of this article. With the coming appointment of Amy Coney Barrett to the Supreme Court, and Justice Thomas’ recent statement attacking Obergefell v Hodges, it behooves one to review the Obergefell decision and analyze Thomas’ statement for what it reveals about the future of Obergefell.

The footnotes are live hyperlinks. Click on a note number to be taken to the source authority.

Given Amy Coney Barrett’s “long-term association”¹ with The Alliance Defending Freedom (ADF), an “anti-LGBTQ hate group,”² and the recent declaration of war against marriage equality by justices Thomas and Alito,³ ⁴ ⁵ it seems reasonably certain that the Court will revisit Obergefell v. Hodges, 576 U.S. 644 (2015) (there exists a constitutional right to marry that extends to same-sex couples) at some point in the near future.

It takes only three justices to grant a writ of certiorari. Thomas, Alito, and Barrett are those three.

It behoves us, then, to revisit both the Obergefell majority opinion to reacquaint ourselves with its principles, reasoning, and holding, and the four dissenting opinions.

Executive Summary

The Majority Opinion

Obergefell, is the landmark U.S. Supreme Court decision that held that under the 14th Amendment’s Due Process and Equal Protection clauses, same-sex couples enjoy the right to marry to the same extent as do heterosexual couples.

The states must recognize that right.

As of the Obergefell decision, 20 states and the District of Columbia had extended the right to marry to same-sex couples. But 30 states had legislation (Defense of Marriage Acts) explicitly defining marriage as a union between one man and one woman.

The Constitution’s Full Faith and Credit Clause provides:

• Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State, and
• The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Under that Clause, a marriage recognized as legal in one state must be recognized as legal in every state. However, the 30 states with Defense of Marriage statutes said that they would not recognize a same-sex marriage from any of the 20 states or the District of Columbia. To the Obergefell majority, that was an intolerable situation.

Obergefell’s effect was to remedy that situation by requiring all states to recognize both a constitutional right to marry and it’s extension to cover same-sex couples. The Defense of Marriage statutes became unconstitutional. The law regarding who could marry whom became uniform throughout the land.

Obergefell recognized that in prior Supreme Court cases, a constitutionally protected substantive due process right to marry had already been established under the 14th Amendment’s Due Process Clause.

Obergefell held that, under the 14th Amendment’s Equal Protection Clause, there is no sufficient reason to treat same-sex couples differently. Thus, same-sex couples enjoy the constitutional right to marry to the same extent as do heterosexual couples.

Justice Kennedy concluded with a passionate, lyrical defense of gay marriage.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. … [M]arriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. 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. Id. p. 28. (PDF p. 33.)

Chief Justice Roberts dissent.

Chief Justice Roberts wrote in dissent that, although the petitioning gay couples made “strong arguments rooted in social policy and considerations of fairness” that have “undeniable appeal.,” the real question before the Court was who gets to decide what constitutes marriage. In his opinion, the answer is the state legislatures.

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.”

Justice Scalia’s dissent.

Contrary to Chief Justice Roberts feeling that the gay couples before the Court made strong arguments rooted in social policy and fairness that have undeniable appeal, Justice Scalia announced that whether or not gay couples get to marry is “not of special importance to me.”

The question as he would frame it is “whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize [gay marriage.] … Does it remove that issue from the political process?” He answers “Of course not.”

He reached the same result as Chief Justice Roberts (leave it to the states) but through two routes, one similar to Roberts’, the other different:

• It’s a political issue, leave it to the states; and
• Whatever was not written at the time never will be. The Constitution and its Amendments are frozen in time. They can mean now only what they meant then.

Justice Alito’s dissent.

Justice Alito framed the question before the Court differently from the majority. The question as he saw it was whether there exists in the Constitution a right to same-sex marriage. “The Constitution says nothing about a right to same-sex marriage.” Therefore, it “leaves that question to be decided by the people of each State.”

He reached the same result as Chief Justice Roberts and Justice Scalia (leave it to the states), but through yet a different route, i.e. by re-framing the question.

Justice Thomas’ dissent.

Justice Thomas began by objecting that the judicial doctrine of substantive due process, by which the majority found under the 14th Amendment a substantive right to marry, is wrong and ought not to exist. To him, there is no substantive right to marry nor should there ever be.

He went on in classic lawyer style to argue that even if the substantive due process doctrine was correct, the petitioning gay couples made out no claim of deprivation under it. The only thing they could claim would be a deprivation of liberty (to marry), but liberty as the Framers meant it was only “freedom from physical restraint.”

In an aside, Justice Thomas opined that the issue is properly left to the states and to the “normal democratic process.”

Detailed Examination of Majority and Dissenting Opinions

The Majority Opinion

The full text of Justice Kennedy’s opinion for the Court and the dissenting opinions of Chief Justice Roberts and Justices Scalia, Alito, and Thomas may be found here

A summary of the major points of all the opinions may be found here

Nine need to know quotes from the opinions may be found here

The Obergefell majority recognized an existing constitutional right to marry.

Justice Kennedy, writing for the five-Justice majority, held that there already exists under the Constitution, specifically under the 14th Amendment’s Due Process Clause, a fundamental right to marry.

The Court has long held the right to marry is protected by the Constitution.

• Loving v. Virginia … (1967) [(invalidated bans on interracial unions) (marriage is “one of the vital personal rights essential to … free men”)]
• … Zablocki v. Redhail … (1978) [(the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying)]
• … Turner v. Safley … (1987) [(the right to marry was abridged by regulations limiting the privilege of prison inmates to marry)]

Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. Slip Op. p.11 (PDF download; PDF p. 16.)

Justice Kennedy recognized that right once again, then considered whether the reach of the Court’s prior decisions should extend to same-sex couples.

[I]n assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. … The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. Id. p. 12. (PDF p. 17)

The four principles the Court addressed are

[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. …[( “the right to marry is of fundamental importance for all individuals”)]. Like choices concerning contraception, family relationships, procreation, and childrearing [sic], all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. … [T]he decision whether and whom to marry is among life’s momentous acts of self-definition. … Cf. Loving, supra, … “[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. Id. pp. 12–13. (PDF pp. 17–18)

A 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. … Marriage is a coming together … intimate to the degree of being sacred. … [I]n Turner, the Court again acknowledged the intimate association protected by this right. … As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Id. p. 13–14. (PDF pp. 18–19)

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing [sic], procreation, and education. … Marriage also affords the permanency and stability important to children’s best interests. … That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage ….

[T]his 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. Id. pp. 14–16. (PDF pp. 19–21.)

Having found in these four principles “the basic reasons why the right to marry has been long protected,” Justice Kennedy wrote:

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter. Id. pp. 17-18. (PDF pp. 22–23.)

Thus the Court held that, under the 14th Amendment’s Due Process Clause, there already exists a substantive, fundamental, constitutional right to marry.

The Obergefell majority held that same-sex couples cannot be denied the right to marry.

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.

…

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. Id. pp. 19–20. (PDF pp. 24–25)

The Court went on to hold,

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exer- cising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. Id. p.22. (PDF p. 27.)

Obergefell did not, strictly speaking, “legalize” gay marriage.

Legalizing gay marriage is not quite what happened in Obergefell.

Now, one might shorten all the above to say just that the Court legalized gay marriage, but to do so gives a short-shrift to the legal niceties.

A state legislature could legalize gay marriage by passing an Act (signed by the governor) redefining marriage from a union between one man and one woman to a union between any two people. That would be legalizing gay marriage.

What the Court did was to find in the Constitution a fundamental right to marriage, the enjoyment of which a state may not deny to same-sex couples.

Legally and logically the two are different principles with different effects.

What a legislature giveth in an Act, the legislature can taketh away in a subsequent Act. Both the giving and the taking will depend on what the people in that state think is correct at any given time. Further, the people in another state may feel differently. That state may legislate marriage differently. Thus, one who is legally married in one state may, by moving to another state, find himself not married.

What the Court giveth under the Constitution no legislature may taketh away. Only by amending the Constitution, or by the Court changing its mind and overruling the prior decision, can a right under the Constitution be rescinded.

The Four Dissenting Opinions

Chief Justice Roberts’ dissent.

Chief Justice Roberts wrote in dissent that the petitioners make “strong arguments rooted in social policy and considerations of fairness” (id.) for allowing same-sex marriages. He found that they have “undeniable appeal.” Id. But he would leave the issue to the state legislatures.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.

…

The people of a State are free to expand marriage to include same-sex couples, or to retain the historical definition.

…

The real question in these cases is … who decides what constitutes “marriage.”

…

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.”

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives…. The Constitution leaves no doubt about the answer. Justice Roberts’ Dissenting Opinion, Slip Op. pp. 2- 3. (PDF p.41- 42.)

Chief Justice Roberts reasons that because the Framers said nothing in the Constitution about marriage, they necessarily entrusted the whole subject matter to the states.

Justice Scalia’s dissent.

Justice Scalia wrote

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes. … [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. 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. The opinion in these cases … robs the People of … the freedom to govern themselves.

…

These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. Justice Scalia’s Dissenting Opinion, Slip Op. pp. 1–3. (PDF pp. 69–72.)

After announcing that questions of gay civil rights, in particular, a right to same-sex marriage, “[are] not of special importance to me,” Justice Scalia framed the question he would answer differently from the majority. The question he asks is whether the 14th Amendment “contains a limitation that requires the States to license” same-sex marriages. He asks whether the 14th Amendment “remove[s] that issue from the political process.” He reads the 14th Amendment literally, so he finds “of course not.”

He also wrote that when the 14th Amendment was.

ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. Id. p 4. (PDF p. 72)

He reaches the same result as Chief Justice Roberts (leave it to the states) but through two routes, one similar to Roberts, the other different:

• it’s a political issue, leave it to the states, and
• whatever was not written at the time never will be. The Constitution and its Amendments are frozen in time. They can mean only what they did mean.

Justice Alito’s dissent.

Justice Alito also framed the question the Court should address differently from the majority.

The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.

…

The Constitution says nothing about a right to same-sex marriage. Justice Alito dissent, slip op. pp1–2. (PDF pp. 96–97.)

Justice Alito framed the question as whether there is in the Constitution a right to same-sex marriage, not, as the majority does, a right to marriage generally. By defining the question in this manner, he found it easy to deny constitutional protection.

He read the Constitution literally, so of course, he found no language addressing the question he posed. He reached the same result as Chief Justice Roberts and Justice Scalia (leave it to the states) but through yet a different route.

Justice Thomas’ dissent.

Justice Thomas wrote that the majority’s decision is based on the judicial doctrine of ‘substantive due process.’ The doctrine is that the 14th Amendment’s Due Process clause not only guarantees the procedural process due a party before he may be deprived of liberty by a government but also guarantees a range of substantive rights due to a party that governments cannot circumscribe.

Where the other Justices recognize the substantive due process doctrine, Justice Thomas does not.

I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. … [T]he constitutional text … guarantees only whatever “process” is “due” before a person is deprived of … liberty …. Justice Thomas Dissent, slip op. p. 2. (PDF p. 79.)

Justice Thomas went further, writing:

Even if the doctrine of substantive due process were somehow defensible — it is not — petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all … a party must first identify a deprivation of … liberty…. The … concept of “liberty” ]the majority] conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clause[]. Id. p.3. (PDF p. 80.)

Justice Thomas wrote that the liberty the Framers had in mind was strictly limited to liberty “from physical restraint.”

In the American legal tradition, liberty has long been understood as individual freedom from governmental action ….

…

Our Constitution … was predicated on a simple truth: One’s liberty … was something to be shielded from — not provided by — the State. Id. pp. 2–12. (PDF pp. (84- 94.)

In an aside, Justice Thomas also wrote that the issue does not belong in the courts but is rightfully consigned to “the normal democratic process ….”

Thus, Justice Thomas dissented on three bases:

The doctrine of substantive due process is incorrect and should not exist;

Even if it were correct, the gay couples petitioning the Court show no legal claim under it because the liberty in the Due Process Clause is only liberty from governmental restraint, not to affirmative governmental action; and

The issue is rightfully consigned to the normal democratic process, i.e. to the states.

Summary of the Dissents

The arguments of the four dissenting Justices against finding a constitutionally protected right to marry that extends to same-sex couples can be summarized as follows.

● The question is who decides what the definition of marriage is.

● The issue belongs to the states and the normal political (democratic) process.

● Under a literal reading of the 14th Amendment, as it meant in 1868, it does not encompass a right to same-sex marriage.

● The judicial substantive due process doctrine is wrong and should not exist.

● Even if it existed, the liberty it contemplates is strictly limited to what it meant to the Framers, which was freedom from governmental restraint not a right to affirmative governmental action.

This is the second in a three-article series.

The first and third are

More From

© 2020 Steve Alexander