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Obergefell v. Hodges provides Marriage Equality For All American Families

Obergefell v. Hodges provides Marriage Equality For All American Families

“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.”

- Justice Anthony Kennedy, Obergefell v. Hodges

On June 26, 2015 the United States Supreme Court released its much-anticipated decision in the consolidated cases of Obergefell v. Hodges.  In a 5-4 opinion, the Court held that marriage is a fundamental right under the U.S. Constitution—a fundamental right that cannot be denied to same-sex couples without running afoul of federal constitutional equality guarantees.
    Writing for the Court, Justice Anthony Kennedy observed that “the constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”  One of those rights, the Court held, is marriage.

In reviewing the history of marriage, Justice Kennedy noted that marriage was initially defined as the union of two persons of the opposite sex, but the arc of that history in the U.S. began to change in the 1960s and beyond.   Justice Kennedy described the fundamental importance of marriage to society, as well as many of the ways in which the nature of marriage has changed over time in response to social pressures.  For example, at one time, a couple’s parents would have arranged the marriage, although there is little history of such arrangements during this country’s history.  Similarly, the view of a married couple as a single legal entity defined by the husband has evolved to a more egalitarian form, along with the changing views of women’s roles in American society.
    The Court has recognized marriage as a fundamental liberty at least since 1967. In the appropriately named Loving v. Virginia, a unanimous Court ruled that the right of marriage could not constitutionally be denied to interracial couples.  The question before the Court in Obergefell was whether denial of the right to same-sex couples also suffered from a similar constitutional defect.
It is important to note that the Court’s answer to that question reflects, rather than creates, a fundamental shift in the way that American society views same-sex couples.  “The nature of injustice”, the Court observed, “is that we may not always see it in our own times.”  This observation appeared to be a direct response to criticism raised in the dissents.  The dissenters argued that the court was somehow creating a new fundamental right of same-sex marriage, rather than reflecting the changing social shift in the American view of the institution.  The majority clearly did not agree.

    The Court observed that American family life has expanded over the last 50 years or more to include thousands of same-sex couples and their children.  At one time, to be sure, American society widely condemned same-sex relations as immoral and such relations were often even criminalized.  Abandonment of that position by the medical profession can be traced just to 1973.  But, as people have come to see homosexuality not as a mental disorder but as an innate condition of the human species, attitudes have softened.  And as times changed, gay and lesbian couples began to form families and bear and raise children within those families.
    From case law precedent, the Court identifies four principles about marriage that compel its conclusion that marriage must be afforded on equal terms to same-sex couples.  First, marriage is a personal choice.  It shapes a person’s destiny.  Second, marriage is fundamental.  No other societal institution is equivalent.  Next, marriage safeguards children and families.  It dignifies couples who wish to define themselves by their relationship to each other, providing the permanency and stability so needed by children in particular.  Finally, “marriage is a keystone of our social order.”  Its denial works a real harm.  By being denied marriage rights, the Court holds, “[s]ame-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.”  The continued exclusion of same-sex couples from marriage in those circumstances, the Court held, created two classes of families in our country.  Furthermore, this class system demeaned same-sex couples and their families by relegating them to a lesser status.  The Court’s decision recognizes marriage in America for what it is—an ever-changing institution that provides comfort, support, and stability to the family, the basic foundational unit of American society.

    Some will complain that the Court’s decision foreclosed further debate on this issue, but truthfully, there is no further debate to be had. The national conversation about same-sex marriage, which began as long ago as the Court’s contrary 1972 decision in Baker v. Nelson, has ended as it must always have, with the recognition that American families are as diverse and wide-ranging as the American people themselves.

Written by Mark Johnson Roberts, Of Counsel (Family Law)