Last updated on: 6/29/2015 | Author:

Gay Marriage in the US Supreme Court: Obergefell v. Hodges

On Apr. 28, 2015, the US Supreme Court heard oral arguments in Obergefell v. Hodges over whether or not gay marriage is a right guaranteed by the US Constitution, and whether or not gay marriages performed in states where it has been legalized must be recognized in states which ban the practice.

On June 26, 2015, the Court ruled 5-4 that gay marriage is a constitutional right, meaning that all 50 states must allow it and that all existing bans are invalid. The decision concluded a decades-long battle over whether gay marriage should be legalized.

At Issue

1. Whether the US Constitution’s due process and equal protection clauses guarantee a right to same-sex marriage.

2. Whether states are constitutionally bound to recognize same-sex marriages performed in other states.

About the Case

Obergefell v. Hodges is a consolidation of six lawsuits from four states: Kentucky, Michigan, Ohio and Tennessee. All four states are covered by the US Court of Appeals for the Sixth Circuit, which upheld the states’ gay marriage bans in Nov. 2014, thus ending a run of success for the gay marriage movement during which more than 40 state and federal courts overturned same-sex marriage bans. The resulting judicial conflict prompted the US Supreme Court to hear the case.

One of the case’s namesakes, Jim Obergefell, sued his home state of Ohio in 2013 along with his partner, John Arthur, who was dying of ALS (also known as Lou Gehrig’s Disease). The couple wanted the state to acknowledge their marriage on Arthur’s death certificate. Obergefell and Arthur had married in Maryland, but their marriage was not recognized in Ohio, where same-sex marriage is illegal. Arthur passed away, and a federal judge ruled that Ohio must recognize the legal union. The state’s appeal was successful, however, reversing the decision. Hodges in the case’s title refers to lead defendant Richard Hodges, an Ohio state official.

Proponents and Opponents

A record 148 amicus (friend of the court) briefs were filed with the Supreme Court in Obergefell v. Hodges, beating the previous record of 136 filed in a 2013 case concerning Obamacare. The briefs filed in support of gay marriage included one by 370 small and large businesses, one by 300 Republican officeholders and activists, and one filed by a group of former high-ranking civilian Defense Department personnel. The briefs filed in opposition to gay marriage include those by states that have banned gay marriage, along with briefs filed by various conservative politicians, scholars, and organizations.

Four days before the hearing, people started camping on the sidewalk outside the Court hoping to secure a seat inside for the proceedings. Protestors for and against gay marriage assembled nearby, with at least one anti gay marriage protestor managing to get a seat inside. After yelling “If you support gay marriage you will burn in hell” while the arguments were in progress, the man was dragged screaming out of the courtroom. Conservative Justice Antonin Scalia was heard to comment, “Rather refreshing actually,” during the incident.

Oral Arguments

During the two-and-a-half-hour hearing, the Court appeared sharply divided. Justice Anthony Kennedy, considered by many to be the Court’s swing vote who could determine the outcome, gave no conclusive indication of which way his vote would fall. Kennedy expressed a reticence to override a definition of marriage that “has been with us for millennia,” yet suggested that gay couples could have a “noble purpose” in wishing to marry. The New York Times reported that Kennedy appeared “more emotional and emphatic when he made the case for same-sex marriage,” giving “gay rights advocates reason for optimism.”

Chief Justice John Roberts, the other member of the Court whose position was considered by some to be uncertain, also emphasized the long-established tradition of heterosexual marriage. Roberts told lawyers arguing on behalf of gay marriage proponents that “you’re not seeking to join that institution, you’re seeking to change what the institution is.”

Justice Elena Kagan, a member of the Court’s more liberal wing, questioned the notion that same-sex marriage would prove a detriment to children. Noting that many same-sex couples wish to adopt, and that marriage would allow more couples to do so, she asked, “How is it not a good thing?”

Listen to Audio of Oral Arguments: Question 1

Read Transcript of Oral Arguments: Question 1

Listen to Audio of Oral Arguments: Question 2

Read Transcript of Oral Arguments: Question 2

The Ruling

Associate Justice Anthony M. Kennedy delivered the majority opinion, in which he was joined by Associate Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Dissents were written by Chief Justice John G. Roberts, Jr., Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito, Jr. The Court ruled that marriage is a constitutional right protected by the 14th Amendment and that states cannot deny any couple that right, including same-sex couples. The Court added that it therefore follows that the second issue before the court, as to whether or not same-sex marriages be recognized in states that ban them, is also resolved: “if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined.”

Read the Syllabus, the Opinion of the Court, and the four dissenting opinions

Quotes from the Majority Opinion and Dissent

In Obergefell v. Hodges (decided June 26, 2015), the US Supreme Court, in a 5-4 majority opinion written by Associate Justice Anthony M. Kennedy, held that:

“The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. ” (page 6)

“A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving [v. Virginia] invalidated interracial marriage bans under the Due Process Clause.” (page 12)

“A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” (page 13)

“A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education… Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. With out the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also 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… That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate.” (pages 14-16)

“Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order… There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.” (pages 16-17)

“It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.” (page 22)

“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 in these cases 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.” (page 28)

John G. Roberts, Jr., Chief Justice of the US Supreme Court, wrote in his June 26, 2015 dissenting opinion in Obergefell v. Hodges:

“As the Court explained two Terms ago, ‘until recent years… marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.” (pages 4-5)

“The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond. Society has recognized that bond as marriage.” (page 5)

“Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry
because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law… Allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental’—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role.” (page 11)

“Unlike criminal laws banning contraceptives and
sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is ‘condemned to live in loneliness’ by the laws challenged in these cases—no one.” (page 17-18)

“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people… Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.” (page 20)

“Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after ‘a quite extensive discussion.’ (page 25)

“When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate… But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. (pages 26-27)

“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision… But do not celebrate the Constitution. It had nothing to do with it.” (page 29)


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Amanda Holpuch, “Same-Sex Marriage: US Supreme Court Has Few Choices but to ‘End the Debate’,”, Apr. 27, 2015

Lawrence Hurley, “Divided Supreme Court Wrestles with Gay Marriage Case,”, Apr. 28, 2015

Adam Liptak, “Gay Marriage Arguments Divide Supreme Court Justices,”, Apr. 28, 2015

Adam Liptak, “Gay Marriage Backers Win Supreme Court Victory,”, June 26, 2015

Adam Liptak, “Supreme Court to Decide Marriage Rights for Gay Couples Nationwide,”, Jan. 16, 2015

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Obergefell v. Hodges, majority decision written by Justice Anthony Kennedy, June 26, 2015

Michael S. Rosenwald, “How Jim Obergefell Became the Face of the Supreme Court Gay Marriage Case,”, Apr. 6, 2015

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Nina Totenberg, “Record Number of Amicus Briefs Filed in Same-Sex-Marriage Cases,”, Apr. 28, 2015

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