What Obergefell means — now, and for the future

June 26, 2015

Supreme Court LGBTUnless you’ve been locked away in a cave, you’re probably already aware of today’s Supreme Court’s Obergefell v. Hodges decision that unequivocally legalized same-sex marriage across the country.  There’s a lot to talk about with this decision and what it means, but rather than talk about everything at length and in full detail, I’ll go through some (relatively) brief points about the most important aspects of Obergefell.

The majority opinion

What did the Court say?  What does this decision mean legally?  What’s with each dissenting justice writing a separate dissenting opinion?

Okay, let’s start with what the five justice majority actually ruled.

The majority opinion, written by none other than Justice Anthony Kennedy himself and joined by the four liberal justices (Justices Ginsburg, Breyer, Sotomayor, and Kagan), held that

[t]he Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

To reach this result, the majority cited to both the Fourteenth Amendment’s Equal Protection Clause and its Due Process Clause.  First, under the equal protection section, the Court held that “[t]he marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.”

Under the due process rationale, the Court wrote, “[i]t is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.”

Aside from this affirmative reasoning for its conclusion, the Court also specifically repudiated nearly every major argument made by same-sex marriage opponents.

In response to the argument that prohibiting same-sex marriage is justified by the state’s interest in “responsible procreation,” the Court stated that the right for married couples to not procreate is protected by precedent, and so the right to marry cannot be conditioned on the capacity or commitment to procreate.”

In response to opponents’ claims that allowing same-sex couples to marry would “redefine” marriage, the Court held that “[t]he history of marriage is one of both continuity and change,” referencing the decline of arranged marriages and the abandonment of the law of coverture (a doctrine that held that a woman’s legal rights were subsumed by those of her husband), and how these changes “have strengthened, not weakened, the institution.”

Finally, the Court addressed the opponents’ concern that “it would demean a timeless institution if marriage were extended to same-sex couples.”  Kennedy’s opinion responded to this by asserting that the same-sex couples involved in the case “seek it for themselves because of their respect – and need – for its privileges and responsibilities.”

The dissents

What about the dissents?  First up is the Chief Justice’s, which was joined by Justices Scalia and Thomas, which essentially argued that the majority usurped what should have been the responsibility of the various state legislatures.  Although the dissent is quite long, it’s interesting to note that it heavily insinuates that the majority opinion would support legal rights for polygamy.

The next dissent was Justice Scalia’s, joined by Justice Thomas, which was written to “call attention to this Court’s threat to American democracy.”  In addition to bemoaning the Court’s ending the “democratic process” with this decision, Scalia also accuses the majority of “astound[ing]…hubris” in recognizing a legal right that wasn’t recognized by any other legal scholars and jurists since the ratification of the Fourteenth Amendment.  Scalia sarcastically refers to these jurists as “lesser legal minds” as a means of condescendingly telling the majority justices that, in short, “You think you know better than everyone that came before you, but you don’t.”

Next we have Justice Thomas’s dissent, joined by Scalia, which argued that the majority is mistaken in its conclusion because the due process clause was not meant to “create” new rights for individuals.  Thomas’s dissent also refuted the assertion that the exclusion of same-sex couples from marriage affected their or anyone else’s dignity.

Finally, Justice Alito’s dissent, joined by Scalia and Thomas, not only echoed the other dissenters concerns that the majority was usurping the democratic process, but also decried the majority’s “redefinition” of marriage, claiming that the jury is still out on the true effects of same-sex marriage.

What comes next?

So that’s the end of the decision.  What happens now?

In the coming weeks, every state across the country will be required to issue marriage licenses to same-sex couples, and will further be required to recognize those marriages between same-sex couples solemnized in other states.  That much, at least, is immediately clear from the decision.

But what about those concerns raised by detractors?

Will religions be compelled to officiate marriages between same-sex couples by the state?

Highly unlikely.  First, there’s no legal precedent to support such a mandate; quite the opposite, actually.  In addition, Justice Kennedy’s opinion was quick to assert that the First Amendment continues to allow religions to oppose same-sex marriage “with utmost, sincere conviction …, by divine precepts.”  Unless a religious organization somehow becomes the sole entity responsible for issuing marriage licenses in a state, a religion simply cannot be compelled to do perform same-sex marriages against its belief systems.

What about the dissenters’ claims that this will open the door to polygamy?

Again, also very unlikely at this point, considering Justice Kennedy’s repeated emphasis on marriage always being understood to be between two people.  If society evolves to come to broaden its definition of marriage to include more than two individuals, the issue may come before the Court, but considering the repeated and explicit language limiting marriage to two individuals in Obergefell, it’s unlikely that the ruling could be used as precedent to support legalizing polygamy.

Of course, the social and cultural implications are far broader than the legal ones.

I grew up in a world where homosexuality was, as Kennedy wrote, “condemned…as immoral” and “treated as an illness.”  My children, on the other hand, will grow up in a world where same-sex couples have every right to marriage that opposite sex couples do, and that attacking someone because of his or her sexual orientation is unacceptable bigotry, plain and simple.

The right to marry was the last great legal obstacle faced by same-sex couples, and Obergefell destroyed it.  Along with that comes a full validation under the law that same-sex couples are equal in every way to their opposite sex counterparts, and that society should reflect as much in its treatment of LGBTQ individuals.

To be sure, LGBTQ individuals will continue to face discrimination from a number of sources.  But because of Obergefell, that discrimination no longer has the full force of the law behind it.  And those who insist on discrimination are a dying breed, on the wrong side of history.  Because my children and all children like them will be raised in the post-Obergefell world of full equality, discrimination against LGBTQ individuals will appear to them to be as ugly as it truly is.