Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., Supreme Court

Obergefell v Hodges is a case with the opinion written by Justice Kennedy and dissenting opinions from Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito.  This case made same-sex marriage the law of the land in the United States of America.

Started:  6/26/2015
Completed: 9/22/2019
Recommendation: Recommended
Recommended By:  Nobody


Review:

This is less a review and more a walk-through of the ruling from the Court.

HELD The Fourteenth amendment requires a State to recognize a same-sex marriage that was performed in another State.  The Petitioners in this case were not trying to demean marriage, but to gain the benefits and responsibilities thereof.  Changes to the nature of such things as marriage is consistent with the history of the country and have served to improve such covenants.  The Due Process clause (found in Section 1) of the Fourteenth amendment extends to personal choices inherent in individual dignity and autonomy.  The right to personal choice regarding marriage is inherent in the concept of marriage.  The right to have intimate interactions is inextricably linked to the right to marriage as well.

The court accepted the case on two basic issues:  1) is a State required to allow the marriage between two people of the same sex and 2) is a state required to recognize the marriage licenses of another state.

This is a collection of several cases rolled into one before the Supreme Court.  Obergefell and Arthur were married in Maryland after a 20 year relationship and after Arthur was diagnosed with ALS.  The returned to Ohio and Arthur died.  Obergefell was denied by the state of Ohio being listed as Arthur's spouse on the death certificate.  DeBoer and Rowse have several special needs children, but adoption laws in Michigan do not recognize same sex couples, so only one of the two is the legally recognized parent.  They came to the court seeking a way for them both to be legally the parents of their children.  DeKoe and Kostura were married in New York, but moved to Tennessee after DeKoe returned from deployment to Afghanistan.  Tennessee does not recognize same sex marriage, so their marriage was invalidated every time they crossed the state line.

The Supreme Court has addressed same sex relationships in only a few cases.  In Browers v. Hardwick the court ruled that there was no right to consensual sodomy.  In Romer v. Evans, however the court struck down an amendment to the Colorado constitution that explicitly prevented laws that protected LGBTQ people from discrimination.  The third case was Lawrence v. Texas which reversed Browers v. Hardwick and held that consensual sex could not be criminalized.

In 1993, Hawaii's Supreme Court dismissed a case regarding same sex marriage due to a change in the Hawaiian constitution as the case moved through the court system.  As a result, many concluded that same sex marriage could be allowed (see Baehr v. Miike).  The United State Congress passed the Defense of Marriage Act in response.  This act defined marriage on the federal level as heterosexual.  Several states disagreed and provided for same sex marriage within their laws and these laws were upheld by state supreme courts.

The fourteenth amendment has been interpreted by the Supreme Court as a protector of intimate choices (see Eisenstadt v. Baird in which a lecturer provided free vaginal foam as a contraceptive to an unmarried woman and was charged with a crime which was reversed by the Supreme Court).

Marriage, itself, has been addressed by the Supreme Court (most famously in Loving v. Virginia which affirmed a right to interracial marriage).  These cases addressed who was eligible to marry (Zablocki v. Redhail struck down a law that prevented people behind on child support from marrying; Turner v Safley held that inmates could marry).  The Supreme Court, however, has not considered the issue of same sex marriage to be a Federal question in the past (see Baker v. Nelson from Minnesota's Supreme Court, which was rejected by the Supreme Court on appeal), but DOMA changed that.

The court argued that there were four points in its consideration of the case:

1. Marriage is inherently linked to personal choice (the logic is in Loving v. Virginia) and is effectively the height of intimacy.
2. The right to marriage is older than any other right (as argued in Griswold v. Connecticut) including the Bill of Rights.
3. Marriage protects children and the family
4. Marriage is a keystone of social order

The plaintiffs argued that this case was not about including a disenfranchised group in an existing right, but the creation of a new right (same-sex marriage) and that such a thing should be very carefully reviewed in keeping with Washington v. Glucksberg (a case that wanted to establish the physician assisted suicide as a right via the fourteenth amendment and failed).  The Court's opinion held that Loving, for example, did not seek a new "interracial marriage" right and that Turner did not seek a new "inmate marriage" right--rather both asked that the existing marriage right be extended to a disenfranchised class.

The Court also found that the lack of an ability to marry was very harmful to same sex couples, that these harms extended to society as a whole, and that the result was subordination of an entire group (same sex couples).

A curious part of this opinion is that the Court argued that sufficient debate had occurred on this issue to be able to gauge whether same sex marriage was worthy of a decision instead of a call for more intense discussion.  The court cited the number of amicus briefs (among other things) as a way of evaluating whether or not the issue had been intensively discussed.  To my mind, this suggests that important court cases simply need more amicus briefs submitted to the Court.  These briefs should be present from people from different walks of life, with different backgrounds from the plaintiffs whether they are supportive of the plaintiff or the defendant.  

The Court identified that marriage was a fundamental right and that it is the unique role of the Judiciary to protect fundamental rights (which cannot be legislated into or out of existence).  The majority opinion effectively dismissed many of the arguments put forward against marriage on the basis of harms to the institution of marriage, potential for people to change their decision to procreate (a bit bizarre that one), and religion (it is a not a First Amendment right to bar someone else from doing something because you have a religious belief against the practice).

The Court's decision to require that states recognize that people legally married in another state are legally married in their state is quickly asserted as a matter of consistency in the ruling.