In Focus

US Supreme Court Ruling on Same-Sex Marriage

On 26 June 2015, the United States Supreme Court ruled that same-sex marriage was a constitutional right across the United States, by a margin of five to four in the case of Obergefell v Hodges. This had the effect of overturning the thirteen remaining state bans on same-sex marriage. The Guardian suggests that the case may prove to be “the most important civil rights case in a generation”, and the New York Times reports the decision is the “culmination of decades of litigation and activism”, and reflects the fact that public support has shifted in favour of same-sex marriage. According to Gallup polling, 27 percent of the US population reportedly supported gay marriage in 1996. By May 2015, this had increased to 60 percent.

Background

The debate over same-sex marriage in the United States has resulted in a number of high profile court cases, and split judicial opinions on the issue. The Congressional Research Service (CRS) note that same-sex marriage bans have typically been challenged under the Fourteenth Amendment of the US Constitution, which guarantees all citizens equal protection under the law. Such bans have also been challenged under the substantive due process guarantees of the Fifth and Fourteenth Amendments, which prevent the Federal Government and individual States from depriving a person of “life, liberty, or property, without due process of law”. Further, the CRS report that same-sex marriage bans have been challenged on the grounds that they violate a “fundamental right” of marriage. In the 1972 Supreme Court case Baker v Nelson, the gay-rights activist Richard Baker filed a lawsuit after a Minneapolis court clerk denied he and his same-sex partner a marriage license, in which they argued the clerk’s decision violated that fundamental right. However, the Supreme Court summarily dismissed the challenge on the basis that a state’s decision to ban same-sex marriage was not a “substantial federal question”.

The CRS explain that Baker meant “state same-sex marriage bans were seemingly insulated from Fourteenth Amendment challenges in federal courts”. However, it also notes that some courts now consider Baker non-binding in wake of subsequent Supreme Court decisions. In particular, in the 2003 case Lawrence v Texas, the Supreme Court ruled that state laws prohibiting same-sex sexual activity were unconstitutional, as they violated the due process provisions of the Fourteenth Amendment. Similarly, in the 2013 case United States v Windsor, the Supreme Court struck down Section 3 of the 1996 Defence of Marriage Act (DOMA)—which defined marriage as that of a union between a man and a women—because it was a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment”. The Court argued at that time that it was inappropriate for the Federal Government to define marriage in this way, because it violated due process and equal protection principles. It further argued that DOMA went against the “long-established precept” that states’ regulated marriage. Observers have contended that this decision raised questions over what role federalism played in the Court’s decision, and further that these rulings were on separate issues, and did not address whether same-sex couples have fundamental right to marry. Nevertheless, Professor Omar G Encarnación Samuel Thomas White LIF 2015/0016 7 July 2015 believes the decision “opened the way for a cascade of lower court rulings declaring same-sex marriage bans unconstitutional”. Indeed, since United States v Windsor, four Circuit Courts (US Court of Appeals for the Fourth, Seventh, Ninth and Tenth Circuits) have struck down state bans on same-sex marriage. However, in November 2014, the Sixth Circuit Court upheld four state bans on same sex marriage, arguing that Baker did remain a binding precedent. This created a Circuit Court split, and prompted the Supreme Court to announce in January 2015 that it would consider the question of gay marriage in Obergefell v Hodges.

Obergefell v Hodges

The Obergefell case originated when same-sex couple Jim Obergefell and John Arthur (who was terminally ill at the time, and has since died) married in Maryland in 2013 to avoid the ban on same-sex marriages in . They sued the State of Ohio following their wedding when it emerged that Obergefell would not be recognised as Arthur’s legal widower by the state. In January 2015, the Supreme Court consolidated Obergefell with three other cases (Tanco v Haslam, DeBoer v Snyder and Bourke v Beshear). Taken together, the cases required the Supreme Court to consider whether the Fourteenth Amendment of the US Constitution required all States to license a marriage between two people of the same sex, and whether to recognise a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. In its ruling, the Supreme Court argued that “the right to marry is a fundamental right inherent in the liberty of the person”, and stated that same-sex couples could not be denied this right under the due process and equal protection clauses of the Fourteenth Amendment. Supreme Court Justice —widely viewed as the swing vote—cast the deciding vote and delivered the majority opinion of the Court, in a decision that was otherwise split down liberal and conservative lines. Kennedy had previously delivered the majority opinions in the 2003 Lawrence v Texas and 2013 United States v Windsor cases. Justices Ruth Bader Ginsburg, Stephen G Breyer, Sonia Sotomayor and Elena Kagan joined with Kennedy’s assent, while Chief Justice John G Roberts Jr and Justices Samuel A Alito Jr, Antonin Scalia and Clarence Thomas dissented, each filing separate dissenting opinions. In his majority opinion, Kennedy said that same-sex couples “ask for equal dignity in the eyes of the law” and the US Constitution “grants them that right”.

Reaction

The New York Times reported that the Supreme Court’s decision “set off jubilation and tearful embraces across the country”, as well as “resistance—or at least stalling—in others”. President said it was a “victory for America”, adding that “we can say in no uncertain terms that we’ve made our union a little more perfect”. Meanwhile, the Guardian reported that some states were still refusing to issue marriage licenses, with local officials citing reasons ranging from religious belief, to confusion and paperwork. Chief Justice Roberts, in his dissenting opinion, argued that the Supreme Court “is not a legislature”, and that “whether same-sex marriage is a good idea should be of no concern to us”. While he suggested that proponents of gay marriage should celebrate the decision, he said “do not celebrate the Constitution. It had nothing to do with it”. According to the New Republic, no Republican presidential candidate has “praised” the Court’s decision. Jeb Bush made a statement in support of “traditional marriage”, but also said we should “respect those making lifetime commitments”. Meanwhile, Republican presidential candidate Scott Walker has called for an amendment to the US Constitution to “reaffirm the ability of the states to continue to define marriage”.

Library In Focus are compiled for the benefit of Members of the House of Lords and their personal staff, to provide impartial, politically balanced briefings on a selection of topical subjects. Authors are available to discuss the contents of the Notes with the Members and their staff but cannot advise members of the general public.

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