On June 26, 2015, the Supreme Court released Obergefell v. Hodges, a landmark decision requiring
all states to allow same-sex couples to marry. The decision was released on the second anniversary of United States v. Windsor, which struck down provisions of the federal Defense of Marriage Act that defined “marriage” as an exclusively heterosexual union. Justice Anthony Kennedy authored the majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. There were no concurring opinions.
The Court’s ruling allows same-sex couples to obtain a marriage license in any state they choose, a right recognized through the due process clause of the Fourteenth Amendment. The final lines of the opinion echoed themes from Loving v. Virginia, the seminal case that struck down interracial marriage bans and emphasized the dynamic nature of the marriage institution.
In this landmark opinion, Justice Kennedy wrote: “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.”
The decision briefly addresses the First Amendment rights of religious organizations and persons to continue their core teachings, then immediately reiterates its express prohibition for a State to bar a same-sex couple from marriage. SCOTUSblog contributor Tejinder Singh noted that it became clear at oral arguments that no minister will be required to perform a same-sex marriage unwillingly. (1) Notably absent from the opinion was the discussion of a scrutiny framework, or level of strictness by which to evaluate marriage equality claims.
Chief Justice Roberts and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas each authored separate dissents. For the first time in his ten-year tenure, Chief Justice Roberts read a summary of his dissent from the bench – marking his profound disagreement with the majority’s holding. In urging same-sex couples to celebrate their new expression of commitment, Justice Roberts scorned the “five unelected judges” comprising the majority for engaging in constitutionally-prohibited judicial activism when he stated: “The Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia. Just who do we think we are?”
Justice Scalia was particularly unhinged by the majority’s decision. His dissent echoed the Chief Justice’s concerns about the opinion’s potentially far-reaching consequences, when he stated: “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.” Joining all four dissents, Scalia compared the majority’s reasoning to “the mystical aphorisms of a fortune cookie.”
While the opinion does not spell out the real-world consequences of the decision for things like adoption, immigration, and marital benefits, Chief Justice Roberts’ dissent explains his view that the pro-marriage equality argument would be stronger if it targeted “certain tangible benefits” rather than the laws defining marriage generally. This view seems to indicate supermajority support for allowing same-sex couples to enjoy the same benefits as heterosexual couples (such as adoption), though further litigation could indicate otherwise.
Though the ruling on this highly divisive issue was met with mixed support, there is no doubt that this decision will have a widespread effect on marriage and family laws throughout the country.
(1) SCOTUSblog a law blog written by lawyers and law professors about the Supreme Court of the United States (“SCOTUS”).