Friday, June 26, 2015

Same-Sex Marriage is Protected by 14th Amendment!

I know this is a non-sequitur among my usual equine-related ramblings, but today is SUCH an important day in the law that really if I didn't recognize today's decision here on the blog, I should get my J.D. revoked.  It's sort of amazing that this happened during my legal career.  Law students will be reading this decision for the rest of all time in their Constitutional Law and Family Law classes.

Today, on a beautiful sunny day in June, the U.S. Supreme Court issued its decision in Obergefell v. Hodges, which is a case that has made its way through the federal courts.  Petitioners are fourteen same sex couples, challenging laws in Michigan, Kentucky, Ohio, and Tennessee that prohibit them from obtaining a marriage license.  The District Courts (the lowest level court) in each of these states held the laws unconstitutional, but the victory was short lived.  The states appealed to the Sixth Circuit (the intermediate court), which consolidated all the cases and upheld the laws.  So the petitioners appealed.

Today the Supreme Court (the highest court in our country, which I'm sure most of you know) reversed the Sixth Circuit, and issued a truly landmark decision finding that "the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State."  (And the crowd goes wild!)

I happen to agree with the ruling with all my heart (it brings tears to my eyes), so this is going to be kind of a biased summary of the decision, just a disclaimer.  But I'm going to do my best to put the Court's reasoning into plain English, because that's sort of a lawyer's job, after all, and I think regardless of where you fall in this debate, it's important to understand where the Court was coming from in reaching its decision before you jump into the ring.

So, the Court began by recognizing that marriage, as a social construct, has changed.  Arranged marriages are on the decline, and laws of coverture are gone (which in a nutshell used to say that once a woman is married she's basically livestock with no rights at all).  The Court noted its prior decisions recognizing the rights of interracial couples to marry, and the rights of prisoners to marry, which I expected to be used as cornerstones. The Court also recognized its prior decision in Lawrence v. Texas, which did away with laws making same-sex intimacy a crime.

The Court went through four principles underlying the "right to marry" generally, and found these principles to apply with equal weight to same-sex marriages.  First, marriage is about the right to personal choice and the concept of "individual autonomy."  This was key to the Loving v. Virginia decision regarding interracial marriages.  Second, marriage is a unique, two person, intimate thing (oh stop Justices you're making me blush!).  The Court looked back at its decision is Griswold where they recognized married couples are allowed to use contraception (can you imagine if that was a right you had to fight for?).  Third, marriage is good for children and families. "Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser." Fourth, marriage is important to the social order.  There are all kinds of benefits tied to marriage, and the Court recognized that without being allowed to marry, same-sex couples "are consigned to an instability many opposite-sex couples would find intolerable."

The Court then relied on Equal Protection (makes sense right?  everyone should be equally protected by the law?).  To sum up the Court's somewhat difficult to follow discussion on this point, the Court basically said that sometimes we realize the way we've been doing things is wrong.  New insights  and "societal understandings" reveal inequalities in our laws that we didn't realize before.  So you know, time to fix that.

The Court then discussed liberty rights under the Due Process clause.  Now, liberty rights are a wishy-washy concept that we spent weeks trying to figure out in law school, because they're not express in the Constitution.  There's this "penumbra of rights" concept but essentially the gist of this discussion is that there is a certain fundamental right to "liberty,"  and (my take on it is), part of being "at liberty" is that you should be allowed to marry the person you love, period, end of story.

Lastly, the Court said, essentially, we know technically the legislature makes the laws and we know we are legislating from the bench here, but we don't care.  If you are seeking protection of your fundamental rights (such as the right to marry), you shouldn't have to wait for a law to be passed to get some relief.

My favorite lines in the Opinion are where the Court pre-empted some of the more common arguments against same-sex marriage.  The "it's a states rights issue," argument was cut off by: "Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect."  In opposition to the "marriage is about babies" argument that I've actually heard from people I know, the Court was quick to point out:  "Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate."  So there.

The full text of the decision is here, if you want to read it for yourself. 


  1. There are very few moments when I'm truly proud of our government, but today is one of them.

  2. I admit to getting misty eyed listening to the radio on my way into work this morning.

  3. I also completely agree with this :) YAY SUPREME COURT!! Marriage for everyone!! #lovewins

  4. I'm really happy about this too, thanks for breaking it down for us! :)

  5. I was also thrilled to hear about the decision today! I appreciate your explanation, because let's just say that the Diane Rehm show wasn't doing a great job this morning.

  6. I absolutely applaud today's decision. Yesterday's was also noteworthy. The right to marry whom you choose, to qualify for and receive all of the rights that come with the institution of marriage, and to have access to affordable health care, belongs to all citizens of this country.

    Thank you Supreme Court.

  7. Thank you for writing this summary! I like how you laid out the arguments and reasoning. So glad this is ruled on at a national level, and you made it very readable.

  8. I love you.

    I study queer history so I'm coming at this from a different discipline (and also I'm gay, ha), and I think the historical and legal perspectives are so complementary.

    My blog will discuss this and the Confederate flag on Monday, but I'm realizing now that I only discuss history when it comes to the confederacy, and not in relation to the marriage equality decision. Oh well. It's too long as it is. :)

  9. definitely a big moment in history!

  10. Jane C. at the Literary Horse emailed me with her comment (blogger was being difficult), and it's too good not to share, so here it is:

    I love that I got to find out about it HERE first! When my Aunt and Uncle were married, it was illegal, because one of them was white, and the other was not. The clerk looked the other way and issued a license anyway. They're still married. People sure fought like crazy to "protect" the sanctity of marriage from people like them.
    And then they fought like crazy to protect the sanctity of marriage from people If you know me, you are laughing uproariouly right now. Afraid of JANE...?!? HAhahahahahahahahahah!!!! (Shaun is pissed that we had to fork out the cash for three weddings..."Ah, mannnn...we gotta get married AGAIN? My main concern was: "ANOTHER WEDDING CAKE, YES!!") I'm sure any couple would react similarly if they had to repeatedly get married.
    I'm not taking this as lightly as I sound. We did have to keep a sense of humor in the face of arguments that seemed us. And trust me, we heard ALL the arguments.
    To friends, supporters, to the Supreme Court, to our President, THANK YOU for counting me as an equal human being under the law, with the legal right to protections, advantages (and sure, annoyances) that come with being a family. It is a joy to read this post, and the comments. Great bunch of folks here. A very special thank you to YOU, Marissa!


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