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Obergefell v. Hodges: Supreme Court Legalizes Same Sex Marriage

On June 26, 2015, in a landmark decision, the United States Supreme Court in Obergefell v. Hodges, held that the 14th Amendment to the U.S. Constitution requires all states to license a marriage between two people of the same sex and further requires that all states recognize same sex marriages lawfully licensed and performed out of state.

Finding that the “history of marriage is one of both continuity and change”, a five justice majority struck down laws in Michigan, Ohio, Kentucky, and Tennessee which denied same sex couples the right to marry, ruling that such laws violate both the due process and equal protection clauses of the 14th Amendment.

The Court was deeply divided in this decision. Justice Kennedy wrote the opinion for the majority. He was joined by Justices Ginsberg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote a dissent in which Justices Scalia and Thomas joined. Justice Scalia wrote a dissent, joined by Justice Thomas. Justice Thomas wrote a dissent joined by Justice Scalia. Justice Alito wrote a dissent, joined by Justices Scalia and Thomas.

The Court’s majority opinion first focused on the due process argument and found that the right to marry is a fundamental right equally applicable to opposite and same sex couples. The Court reached this conclusion by identifying four basic reasons why the U.S. Constitution protects the right to marry and found that these reasons also apply to same sex couples. The reasons identified by the Court are: 1) there is an “abiding connection between marriage and liberty”, 2) the right to marry is a fundamental right because ” it supports a two-person union unlike any other in its importance to the committed individuals”, 3) marriage “safeguards children and families”, and 4) Marriage “is a keystone of our social order”.

After discussing these reasons, the Court concluded that limiting marriage to opposite sex couples shows “inconsistency with the central meaning of the fundamental right to marry”, and that “the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples”. Finding that the fundamental right to marry applies to same sex couples under the due process clause, the Court concluded, ” fundamental rights may not be submitted to a vote; they depend on the outcome of no election”.

The Court also then found that bans on same sex marriage also violate the equal protection clause of the 14th Amendment and “abridge central precepts of equality”.

The various dissenting opinions focused on several arguments, primarily that the definition of marriage is a legislative decision that should be left to the individual states and the Court should not impose its definition on them. They expressed concern that the Court expanded the definition of liberty under the due process clause because historically “liberty has been understood as freedom from government action, not entitlement to government benefits” and “refers only to freedom from physical restraint.” They point out that the Court’s reasoning could apply to sanction polygamy and could endanger freedom of religion for those who believe that the sanctity of marriage is only between a man and a woman. Several of the dissents were quite scathing, criticizing the logic of the Court and arguing that usurping the role of the legislature undermines the Court’s integrity.

Justice Roberts agreed in his dissent that the Constitution protects a right to marry and requires states to apply marriage laws equally, but said that the question is “what constitutes ‘marriage’ or –more precisely– who decides what constitutes ‘marriage'”. Roberts reasoned that marriage between a man and a woman meets the vital need of insuring that “children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship”. He stated that, “procreation occurs through sexual relations between a man and a woman”, (ignoring that modern medicine makes procreation possible in other ways). He acknowledges the compelling personal accounts of the petitioners, but reasons that legal precedent only stands for the “limited proposition that particular restrictions on access to marriage as traditionally defined violate due process”. In other words, he concludes that “marriage” is not a fundamental right for same sex couples because they are not included in its traditional definition.

This decision is one of the most important decisions of this era. It has deeply divided the Court, as it has deeply divided our Country. Same sex marriages are now legal in every state of our Union and states which previously refused to recognize same sex marriages performed in other states must now do so. This is now the law of the land.