Week 6

Procedural History:

Obergefell v. Hodges was a compilation of cases consolidated at the Court of Appeals for the sixth circuit, each with fact patterns similar to what was described above for Obergefell in particular. Each case started at district courts which ruled in favor of the petitioners, but the court of appeals reversed the judgement, which prompted an appeal to the Supreme Court who then issued a writ of certiorari and released a ruling on Obergefell v. Hodges.

Facts of the case: 

Same sex couples were either forbidden to get married in their home state, or their home state refused to recognize their same-sex marriage that was performed out of state. I know that Obergefell in particular petitioned in court to have his marriage recognized by the state of Ohio, which refused to do so. Obergefell and his partner got married out of state, but when they returned to Ohio and one of the men died, the state refused to list the surviving partner on the death certificate of the other.

Issues:

Do same sex couples have a fundamental right to marriage, and can that right be restricted by state laws?

Legal Rules Applied: 

The Equal Protection and the Due Process clauses of the 14th Amendment. 

Analysis:

In the majority opinion written by Justice Kennedy, the court finds and proves that marriage is a fundamental right (meaning that any law restricting this right needs to be proven on a basis of strict scrutiny) that should be available to anyone. Kennedy argues that marriage is an institution that has always existed in this country, and that its existence in this country is also tied to guardianship privileges under the law; Kennedy does not hide the fact that traditionally, gay people have been considered outside of the definition of marriage, but discredits arguments that anchor on the allegation that marriage has always been the same. Rather, Kennedy argues, marriage has changed countless times over the course of legal history without having its status as an essential right stripped. Thus, any state that denies the right to marry on the basis of morality infringes on gay individuals’ liberty to choose to marry inherent in the due process clause. Further, gay people deserve equal protection to their rights under the laws, requiring states to recognize marriages performed in other states.

Conclusion:

The Court recognizes the liberty and right to marry a person of the same sex under the constitution, thus requiring all states to issue marriages to same sex couples and to recognize same sex marriages performed in different states.

No Concurrences

Dissents:

Roberts, Scalia, Thomas: Recognizing the fundamental right to marry does not mean the court should legally require states to recognize same sex marriages if they have legislated against that interest. The dissenters accuse the majority of legislating from the bench by compelling states to comply under the due process clause and equal protection clause. The dissent argues that states were already expressing their right to define marriage across the nation, with some states passing laws that opened marriage up and other states choosing to restrict the definition; the active legislation on the issue is evidence to the dissent that the issue was still in development, and that the Supreme Court jumped the gun by making a ruling at a federal level. They disagree with the majority's argument of change, even though they cite cases that changed marriage, they argue that the changes never went so far as to change the "traditional" heterosexual understanding of the institution and so there is a substantive legal claim to heritage that would protect any state's legislative action banning same sex marriages under the due process clause. The dissenters argue against hospital visits and institutions of guardianship as a claim for harm/exclusion that needs to be remedied under the equal protection clause. 

Justice Thomas and Scalia: Liberty: This dissent furthers the claims that discount legitimacy under the fourteenth amendment above, but they argue that the claims are in fact against the constitution and the federalist principles that afford liberty to states. They argue against the majority's use of liberty in the due process clause to protect freedom of choice to the right to marry, since liberty in the clause is typically asserted to defend against government action and not to defend access to a right which the government must bestow. Also, what about religious liberty? This dissent argues for religious liberty in the freedom afforded to legislatures and for individuals who must perform/license these marriages.  

Alito with Scalia and Thomas: 

There exists no textualist argument for a right to same sex marriage (i.e., it’s not in the constitution so it doesn't exist). Just because consensus dictates that gay people should be able to marry, doesn't mean that right exists under the law. The states have a right to hold their traditional understanding of marriage. Federalism and bench legislating again. This ruling might have a bad impact on the rule of law, and on the court's reputation. Constitutional interpretation has gone too far, surely there is a limit and American’s will be hurt by the overreach of the court in this case.