On June 26, 2015, the Supreme Court ruled in favor of plaintiffs in Obergefell et al vs. Hodges, Director, Ohio Department of Health, et al, (No. 14-556), allowing same sex couples to marry in every state. The landmark decision, authored by Justice Kennedy, held that the plaintiffs, who were seeking “equal dignity in the eyes of the law.” were granted that right by the Constitution. The decision is a historic victory for gay rights activists who have fought for years in the lower courts.
The lead plaintiff in Obergefell v. Hodges is Ohio resident Jim Obergefell, who wanted to be listed as the surviving spouse on his husband’s death certificate. In 2013, Obergefell married his partner of two decades, John Arthur, who suffered from ALS. Arthur passed away in October of that year, three months after the couple filed their lawsuit. Obergefell was joined by several dozen other gay plaintiffs from Kentucky, Michigan, Ohio and Tennessee who were fighting to be able to marry and to have their marriage recognized in every state in the country. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate 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 US Court of Appeals for the Sixth Circuit consolidated the cases and reversed. Prior and following the Sixth Circuit’s decision, every other Circuit court to consider the issue held that states must recognize same sex marriages. The Sixth decision thus created a “Circuit Split” which occurs when the nation’s federal appeal courts disagree about an interpretation of a law or the Constitution. The Supreme Court granted cert. to address the split and tackle the question directly.
Before the decision, same-sex couples could marry in 37 states including the District of Columbia, but there were still 13 states which banned same sex marriages , and as stated above, the federal courts were divided over whether states must allow same-sex couples to marry and recognize such marriages performed elsewhere.
The questions proposed to the Supreme Court during the oral argument which took place on April 28th, 2015 where
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?
The Supreme Court ruled by a 5 to 4 vote that the Constitution guarantees a right to same-sex marriage. The court’s four more liberal justices, Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, joined Justice Kennedy, while the four dissenting justices, each wrote their own dissent criticizing the decision.
Justice Anthony Kennedy wrote that laws prohibiting same-sex marriage are unfair to gay couples and to the children they raise. “Without the recognition, stability and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”
Justice Kennedy acknowledged that people who strongly believe that marriage should be only between a man and a woman will continue to oppose same-sex marriage. Those people based their beliefs in religious doctrines which advocate that same-sex marriage should not be condoned by divine precepts. Justice Kennedy recognized that the debate between the two opposite factions of the society should continue, but the marriages must be allowed, because the Constitution does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Justice Kennedy found the “dignity of marriage” to be central to the Court’s decision and the Constitutional analysis. Same-sex couples want to be recognized precisely because they do understand the real meaning of marriage; “The lifelong union of a man and a woman always has promised nobility and dignity of all persons”[…] “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” […]” 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…They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
According to the Court, “dignity” is guaranteed by the Constitution and can be found inhered to the Fourteenth Amendment, which says no state shall “deprive any person of life, liberty, or property, without due process of law.”
In dissent, Chief Justice Roberts said that under the Constitution, judges have power to say what the law is, not what it should be; and therefore, it has nothing to do with the Constitution to allow same-sex marriage. He adds “…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…”
Justice Scalia wrote that the justices in the majority have usurped the power of the people to govern themselves. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called democracy.”
Justice Thomas found no ground for a constitutional right to same-sex marriage, and says that the majority misconstrues even the concept of the liberty. Finally, he finds “offensive and inaccurate” how Justice Kennedy supports the concept of the evolution of the meaning of “liberty” as in the Bill of Rights and the 14th Amendment and backs up the petitioners’ analogy of their case with the Supreme Court’s decision in Loving v. Virginia which struck down the laws banning mixed-race marriage. According to Justice Thomas, “The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” […] Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. […] It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.”
Finally, Justice Alito added that the same-sex marriage decision will have other important consequences; “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares the traditional marriage laws to laws that denied equal treatment for African-Americans and women […].The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”
Justice Kennedy was the author of all three of the Supreme Court’s previous decisions which expanded the rights of gay Americans. The latest decision came exactly two years after his majority opinion in United States vs. Windsor, which struck down a federal law denying benefits to married same-sex couples, and later his majority opinion in Lawrence vs. Texas, which struck down laws making gay sex a crime.
The country’s views of same-sex marriage have transformed since 2004, when Massachusetts became the first state to allow gay couples to wed. In 2013, the Supreme Court began chipping away at the country’s legacy of discrimination against same-sex couples when it struck down part of the 1996 Defense of Marriage Act, which prevented same-sex couples whose marriages were recognized by their home state from receiving the hundreds of benefits available to other married couples under federal law.
President Barack Obama became the first sitting president to support marriage equality when he came out in favor of it in 2012, the same year that the Democratic Party made it part of its platform for the first time. On Friday, Obama welcomed the decision saying it “affirms what millions of Americans already believe in their hearts.”
Many federal employment laws are potentially affected by the Court’s analysis, and the decision will thus increase certain protections to gay individuals in the workplace. For example, the Family Medical Leave Act, which provides protected leave status when leave is taken to care for an ill spouse, will now compel employers to give leave to legally married gay couples.
In New Jersey, the New Jersey Law Against Discrimination has long protected gay individuals from discrimination based upon their sexual orientation. While no federal law to date provides such explicit protection, terminations based upon gender stereotyping are unlawful under Title VII.
If you believe you have been discriminated or harassed at work because of your sexual orientation, please contact one of our employment attorneys today for a full legal consultation. The consultation is free.
The full transcript can be found here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q2_8m58.pdf
