Sturm College of Law professor Catherine Smith is a co-author of an amicus brief cited by the Supreme Court in the decision last week that made same-sex marriage a constitutional right. Photo courtesy Sturm College of Law
Catherine Smith is a Sturm College of Law professor and co-author of an amicus brief cited by the Supreme Court in Obergefell v. Hodges, the decision last week that recognized the constitutional right of same-sex couples to marry. Her current scholarship explores the equal protection claims of children of same-sex parents. That scholarship informed the friend-of-the-court briefs she and her co-authors filed in Obergefell and in an earlier case that struck down the Defense of Marriage Act. Smith and her co-authors argued that if the government insists that marriage is good for children of opposite-sex parents, then marriage is also good for children of same-sex parents.
Q: In a 5-to-4 ruling in Obergefell v. Hodges, the Supreme Court extended the right of same-sex couples to marry — no matter where they live. What makes this decision so historically significant?
A: This decision is historic because the Supreme Court held, for the first time, that same-sex couples have a fundamental right to marry, protected by the Constitution, and that this right must be recognized in all 50 states. In so holding, the court also proclaimed that same-sex unions are equal to opposite-sex unions.
The opinion also offers insight into two issues that deeply divide the justices and our country:
1) Does the Supreme Court get to decide whether there is a fundamental right to marry, or is it left to the states?
2) Is the Constitution an evolving document that changes to reflect changing social values, or should it be interpreted to reflect the values at the time it was written?
The Supreme Court decided the question with a slim majority. Justices Kennedy, Breyer, Ginsburg, Kagan and Sotomayor agreed that same-sex marriage nationwide is now simply marriage.
Q: What’s the gist of the majority’s analysis?
A: The gist is that same-sex couples have a constitutional right to marry.
The Obergefell majority held that the constitutional right is firmly rooted in the fundamental right to marry under the Due Process Clause.
In 2013, in United States v. Windsor, the Supreme Court struck down the federal Defense of Marriage Act (DOMA) as unconstitutional. At the time, only 12 states and the District of Columbia recognized same-sex marriage. In short order, almost every federal circuit, in reliance on Windsor, struck down same-sex marriage bans and non-recognition laws as a violation of federal constitutional law. By the time Obergefell made its way to the high court, the count was at 37 marriage-equality states, mostly through federal judicial decree, not state court or legislative action. The Sixth Circuit broke ranks with other circuits and upheld the constitutionality of same-sex marriage bans in its jurisdiction (Michigan, Kentucky, Ohio and Tennessee). A number of cases from this jurisdiction were consolidated under what will historically be remembered as the watershed case of Obergefell v. Hodges.
The majority explained that the right to marry has long been considered a fundamental right under the Due Process Clause of the Fourteenth Amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” And the majority made clear that “the identification and protection of a fundamental right is an enduring part of the judicial duty to interpret the Constitution.”
Justice Kennedy then turned to arguments for excluding same-sex couples from this right. The defendants argued that gays and lesbians are not seeking a fundamental right but claiming a new and nonexistent right, “the right to same-sex marriage.” The majority rejected this interpretation of Supreme Court precedent, explaining that even though previous cases were within the context of opposite-sex marriage, the relevant inquiry required a more comprehensive approach to determine whether there is a sufficient reason for excluding the class of people from the right to marry.
The majority turned to the history of marriage and its important shifts over time based on changing social norms and values. The court also offered four principles for why the right to marry has been protected: 1) allowing for individual autonomy in areas of intimate life; 2) supporting a unique “two-person union” through which to find expression, intimacy and spirituality; 3) offering a safeguard for children; and 4) maintaining the country’s democratic social order. The majority found that same-sex couples and their children were no different than opposite-sex couples when it came to these abiding principles.
Contrary to Justice Alito’s view that history and tradition alone justify excluding same-sex couples from the fundamental right to marry, the majority cautioned that “[h]istory and tradition guide and discipline this inquiry but do not set its outer boundaries.” The majority avoided a rigid definition of the right and focused on the evolving nature of marriage and how it may shift as society develops “new dimensions of freedom” from the political and judicial process. The court offered a number of examples, including the changing social norms of racial and gender inequality. For example, they noted that the history and tradition of banning interracial marriage and enforcing gender inequalities within marriage (based on male coverture) ultimately gave way to new insights based on social change and understanding, which in turn changed the meaning of liberty.
In addition to recognizing same-sex marriage as a liberty interest, the majority also invoked the equal protection guarantee of the Fourteenth Amendment. The interrelation of the two principles of liberty and equal protection advance our understanding of “what freedom is and must become.” Intriguingly, at least to legal scholars, Justice Kennedy continues to build on his jurisprudence in previous cases to elaborate on what may become a new concept of dignity arising from a blended liberty and equality interest.
Q: The four dissenting judges each wrote an opinion. What stands out about their positions?
A: The main theme from the dissents by Chief Justice Roberts, Scalia, Thomas and Alito is that justices should not decide this question and that it should be left to the states. Roberts recognizes the strong policy arguments advanced by same-sex marriage advocates, but maintains that the court is not the legislature: “Whether same-sex marriage is a good idea should be of no concern to us.” This theme is repeated throughout the dissents with slightly different takes and drastically different tones.
As to the merits of whether same-sex marriage is a fundamental right, Justice Alito argued that it is not, because “liberty” under the Due Process Clause protects only rights “deeply rooted in this Nation’s history and tradition.” Same-sex marriage lacks deep historical roots as a relatively new development. Alito also endorsed the defendants’ argument that marriage cannot be separated from the “one thing that only opposite-sex couples can do: procreate.”
On the notion of dignity, Justice Thomas points out that the Constitution contains no “dignity” clause and that the government is incapable of bestowing dignity (or taking it away) because it is innate.
Q: Does this decision have ramifications for churches refusing to marry same-sex couples?
A: It is difficult to imagine a scenario in which a church would be required to perform a same-sex marriage that is counter to its congregants’ deeply held religious beliefs.
I do think that Obergefell may have social implications for churches, but that is the result of the large social movement around LGBT equality, not just the Obergefell decision. Over time, as the LGBT-rights movement has gained greater social and public acceptance, some churches have opened their pews to LGBTs, and some have taken affirmative stances against LGBT inclusion. It will take some time to determine whether Obergefell’s impact will be a negative or positive one in the social and public discourse on LGBT inclusion into religious communities nationwide.
Q: Is the question of same-sex marriage now resolved once and for all?
A: Yes. However, Obergefell does not resolve discrimination based on a person’s sexual orientation in other spheres in our society. Same-sex couples have been afforded the fundamental right to marry, but that does not directly address sexual-orientation discrimination in housing, employment, public accommodations, and other legal and social institutions.
Finally, there is no discussion about the “B” and “T” individuals who make up the LGBT community. The Obergefell decision does not address discrimination against, and full inclusion of, bisexuals and transgender citizens.
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