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High Court rules in favor of same sex marriage
SCOTT PIEPHO
Legal News Reporter
Published: July 13, 2015
In what may well be the most significant case of the term, the U.S. Supreme Court ruled that same sex couples have the right to be married with full legal recognition. By a 5-4 decision authored by Justice Anthony Kennedy, the court found for the plaintiffs in Obergefell v. Hodges.
The case consolidates four cases, one from each of the states in the 6th U.S. Circuit Court of Appeals, some featuring multiple plaintiffs. While most of the federal courts of appeals that heard cases from same sex couples seeking legal recognition of their marriages, the 6th Circuit ruled 2-1 that restricting marriage to opposite sex couples does not implicate the Constitution.
The lead plaintiff, Jim Obergefell, sued Ohio Department of Health Director Richard Hodges, seeking to be listed as the surviving spouse of his deceased husband whom he had married in Maryland. The other plaintiffs also sought the right either to legally marry or to have their out-of-state marriages recognized by their home states.
Kennedy’s opinion relies primarily on the due process clause to find a constitutional right for same sex couples to marry, bringing in the equal protection toward the end of his argument. Much of his legal argument invokes a series of cases finding that marriage is a fundamental constitutional right protected the due process clause.
The first such case, Loving v. Virginia, overturned a Virginia law criminalizing interracial marriage. In two follow up cases, the court found that states impermissibly burdened that fundamental right to marry. In Zablocki v. Redhail the court struck down a law prohibiting a man from marrying if he was behind in his child support payments and in Turner v. Safley overturned regulations that limited the rights of inmates to marry.
Each justice in the minority wrote a dissent. Chief Justice John G. Roberts’s dissent, which justices Clarence Thomas and Antonin Scalia joined, takes the court to task for creating the right to “redefine marriage.” Roberts acknowledges that the court had held marriage to be a fundamental right, but argues that the right only extends to marriage as traditionally understood – that is between an opposite sex couple.
He distinguishes marriage cases cited by the majority, arguing that they determine only whether a person is being improperly prevented from entering into marriage as traditionally understood. The majority, by going beyond that traditional understanding of the fundamental nature of marriage does not simply extend the right to marriage, but creates an entirely new right, one that he argues the Constitution does not support, he argues.
Tracy Thomas, associate dean of The University of Akron School of Law said she believes that Kennedy’s opinion answered Roberts’s objections. In particular, she praised Kennedy for going beyond Loving to examine other right-to-marry cases, particularly Zablocki.
“Zablocki is key,” she said. “It’s an underrated case” in that the law at issue does not absolutely prohibit marriage, places conditions on the timing of the plaintiff’s marriage.
Thomas said Zablocki also considers due process and equal protection claims in tandem as Kennedy does in the decision.
Thomas, who teaches family law and directs the Constitutional Law Center at the School of Law, faulted Roberts for his characterization of Loving. Contrary to Roberts’s characterization, she said she finds that the states maintaining anti-miscegenation laws at the time of Loving regarded marriage restricted to one’s race as fundamental to the definition of the institution as marriage being between a man and a woman.
Thomas also noted that Roberts argues that marriage has for millennia been defined as one man and one woman, ignoring the persistent reality of polygamy.
Justice Kennedy’s opinion treats equal protection as “connected in a profound way” to substantive due process, she said, adding that he does not engage in traditional equal protection analysis, determining whether the plaintiffs fall into a suspect class and identifying a standard of review.
On the other hand, she said, at two places in the opinion, Kennedy refers to same-sex attraction as an immutable trait, which generally serves as a starting point for determining whether a group is a suspect class.
According to Thomas, the lack of detail regarding equal protection is consistent with how Kennedy has been approaching marriage equality cases.
“This is a marriage issue for him not a same sex issue,” she said, adding, “at least since Windsor, it’s where Kennedy is coming from.”
Regarding the standard of review, Thomas said she believes it to be strict scrutiny.
“In two places Kennedy says ‘unjustified’ and ‘incompatibility.’ These are conclusory terms.” A standard of review other than strict scrutiny would require analysis, not conclusion she explained.
Kennedy’s opinion was joined by justices Stephen G. Breyer, Ruth Bader Ginsberg, Elena Kagan and Sonia Sotomayor, none of whom filed a concurring opinion. Thomas speculated that the other justices abstained from filing concurrences in an effort to avoid weakening the opinion.
Thomas said she found “two bows to Ginsberg” in the opinion. Kennedy notes a number of changes in marriage over the years that he uses to argue that the fundamental right attaches to marriage as it is evolving, not a particular configuration of marriage from the past.
Those changes include the disappearance of arranged marriages and the practice of coverture under which a married couple became a single entity with the wife’s legal identity subsumed into her husband’s. The arguments regarding both arranged marriages and coverture are favored by Ginsberg.
In the remaining dissents the justices refer back to Roberts’s dissent but focus on particular issues. Scalia argues primarily that because the court’s opinion cannot be justified by the Constitution, it represents a dangerous judicial usurpation of state authority and the democratic process. Thomas’s concurrence reiterates his long-argued position that the due process clause should not be used to establish substantive rights not explicitly guaranteed in the Constitution.
Justice Samuel A. Alito argues that the majority’s opinion stems from a fundamental understanding of the traditionally understood reason for marriage.
Looking forward, Thomas believes the next issues will include fallout from the Hobby Lobby case as people make religious liberties challenges to accommodating same sex marriages.