No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered. …. Obergefell v. Hodges, 576 U.S. ____ (2015).
In a 5-4 opinion penned by Justice Anthony Kennedy, the Supreme Court of the United States ruled today that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, thereby making marriage equality the law of the land.
There are lovely passages in the opinion and in this initial analysis, we will try to cover the legal bases of the ruling, as well as the memorable prose. We’ll also point out the areas that might prove legally significant in future cases involving LGBT rights.
Justice Kennedy wrote that same-sex couples are entitled to the right to marry under both the Due Process and Equal Protection Clause. He spends a lot of time discussing the history of marriage, illustrating that it has never been a stagnant institution but has instead changed as the law has recognized rights of people it had not previously recognized. He notes that marriage began as an agreement between the couple’s parents; then became a voluntary agreement between a man and a woman but, under laws of coverture, was still viewed legally as a single, male-dominated legal entity. As Justice Ginsburg noted during oral argument in this case, the opinion notes that coverture laws were abandoned as society and then courts began to see that women have their own equal dignity in the law. Justice Kennedy notes that these transformations were not superficial, but affected aspects of marriage long viewed as essential, and that these transformations strengthened, rather than weakened, marriage.
The majority opinion then goes through a similar analysis regarding the history of gay rights in this country. Justice Kennedy notes that in many western nations, homosexuality was considered criminal and therefore, “A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.” He also notes that for much of the 20th century, it was treated as an illness. “Only in recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”
Beginning with due process, the majority states, “The nature of injustice is that we may not always see it in our own times …. When new insight reveals discord between the constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” The Court notes four principles of due process that mandate a ruling in favor of marriage equality.
First, the right to personal choice regarding marriage is inherent in the concept of individual autonomy. “Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make” and “choices about marriage shape an individual’s destiny.” Citing Loving v. Virginia, the Court states, “There is dignity in the bond between two men and two women who seek to marry and in their autonomy to make such profound choices.”
Second, the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The Court quotes its previous decision in Griswold v. Connecticut, “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
Notably, the Court also notes that it protected the autonomy of same-sex couples in Lawrence, “But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”
Third, marriage equality safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education. The Court notes that most states allow same-sex couples to adopt, providing “powerful confirmation from the law itself that gays and lesbians can create loving, supportive families. …. Without the recognition, stability and predictability marriage offers, their children … suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”
Fourth, marriage is a keystone of our social order. “The states have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from this institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. …. Same-sex couples are consigned to an instability many opposite sex couples would deem intolerable in their own lives.”
In addressing the dissenters’ argument that petitioners do not seek to exercise the right to marry but instead want a nonexistent right to “same-sex marriage,” the majority references previous cases involving the right to marriage, noting that Loving did not ask about ‘interracial marriage’, Turner did not ask about ‘right of inmates to marry,’ and Zablocki did not ask about a ‘right of fathers with unpaid child support to marry.’ Each of those cases inquired about “the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding” the relevant class at issue, just as same-sex couples ask now.
The Court makes a point of saying that the First Amendment prohibits a state from forcing a church to perform same-sex marriages. However, also notes that the Constitution prohibits personal opposition from becoming the law and policy of the State.
The Court also finds that marriage equality is guaranteed by the Equal Protection Clause and that this is inextricably intertwined with principles of Due Process, just as Loving struck down bans against interracial marriage on both due process and equal protection grounds.
This brings us to a more indirectly significant portion of the opinion.
Generally speaking, when addressing equal protection, courts apply a particular standard, oftentimes referred to as a “level of scrutiny,” to decide whether a law denies equal protection to a particular class of people. Ideally, today’s decision would have explicitly stated it was applying some form of “heightened scrutiny,” a legal declaration that all laws that discriminate on the basis of sexual orientation must be treated with skepticism by the courts. It did not do that but it did include some extremely important language in this regard, language we have not seen before in any Supreme Court opinions dealing with gay rights.
Two different times in Justice Kennedy’s opinion, he uses the term “immutable” to reference sexual orientation, including that “psychiatrists and others [have] recognized that sexual orientation is both a normal expression of human sexuality and immutable.” Aside from being an inherent rejection of the idea that sexual orientation is a choice, the term “immutable” is particularly significant in the context of challenging discriminatory laws or practices because historically, courts have referred to being discriminated against based upon “immutable characteristics” as triggering heightened scrutiny. This means that if a law or state action discriminates against someone based on an immutable characteristic, such as race or gender, then the courts look at that law or state action with skepticism and applies a heightened scrutiny. The acting governmental entity has a higher burden, in that situation, to justify the law or state action to the court. It’s difficult to imagine that Justice Kennedy and the majority used this word lightly and certainly could present a basis for challenging anti-gay discrimination by governmental entities in the future.
Additionally, another basis for using heightened scrutiny to analyze alleged discriminatory laws or government action is if the group at issue has faced discrimination historically. Justice Kennedy’s discussion throughout the opinion of discrimination historically faced by the LGBT community leaves little doubt that this applies. In one particularly poignant passage, he specifically cites to Bowers, in which the Supreme Court upheld laws criminalizing same-sex intimacy, and notes that although the Court overruled the Bowers decision in Lawrence, “men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.”
We know there is more work to be done in the fight for equality for the LGBT community. Among other things, in many states couples can still get lawfully married on Friday and be lawfully fired on Monday, and the immutable characteristics language will not affect the discriminating actions of private employers. For now, this opinion does nothing more and nothing less than make marriage equality the law of the land in the United States. However, it might do more. We shall see.