Obergefell v. Hodges

I finally made my way through the 103 pages of the Supreme Court decision on same-sex marriage. I realize most people won’t have the time or the inclination to read this thing, so I’m offering this short summary for anyone interested in the gist of the ruling. The summary consists of 4 pages totaling 1,865 words. The outline headings are mine. The original Court document had no headings:

Here is the official title of the document:




No. 14–556. Argued April 28, 2015—Decided June 26, 2015

The entire document consists of 103 pages that break down as follows:

  • 5 pages of syllabus that summarizes the opinion of the Court;
  • 34 pages that contain the Opinion of the Court (the majority opinion) which consists of 28 pages of text followed by 6 pages of Appendices;
  • 64 pages of dissenting opinion: Justice Roberts has 29 pages of dissent, Justice Scalia has 9 pages of dissent, Justice Thomas has 18 pages of dissent, and Justice Alito has 8 pages of dissent.

The Opinion of the Court, which made same-sex marriage a Constitutional right in all 50 States, consists of 28 pages of text that I will summarize here. I will not be dealing with any other part of the 103 page document. I realize there are many ways to summarize this opinion. This is how I see it:

1. The case before the Court, Pp. 2-3

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages that are lawfully performed in another State given full recognition in theirs. Each District Court ruled in the petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed the ruling.

The Supreme Court granted review of two questions: The first, presented by the cases from Michigan and Ken­tucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Four­teenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.

2. The history of the subject before the Court, Pp. 3–10

a. The history of marriage as a union between two persons of the opposite sex, Pp. 3-6

To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect, and need, for its privileges and responsibilities, as illustrated by the petitioners’ own experiences.

b. The history of marriage as one of both continuity and change, Pp. 6-10

Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

The Nation’s experience with gay and lesbian rights illustrates this dynamic. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes, so that only in more recent years have psychiatrists and others recog­nized that sexual orientation is both a normal expression of human sexuality and immutable.

Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law. In 2003, the Court overruled its 1986 decision in Bowers v. Hardwick, which upheld a Georgia law that criminalized certain homosexual acts, concluding in Lawrence v. Texas that laws making same-sex intimacy a crime “demean the lives of homosexual persons.” In 2012, the federal Defense of Marriage Act was also struck down in United States v. Windsor. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue.

3. The relevance of The Fourteenth Amendment, Pp. 10–23

a. The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause, Pp. 10-12

These liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. Applying these tenets, the Court has long held the right to marry is protected by the Constitution. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. This analysis compels the conclusion that same-sex couples may exercise the right to marry.

b. Four principles and traditions that demonstrate why the reasons that marriage is fundamental under the Constitution apply with equal force to same-sex couples, Pp. 12-19

The first principle of this 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 the Court invalidated interracial marriage bans under the Due Process Clause. Decisions about marriage are among the most intimate that an individual can make. This is true for all persons, whatever their sexual orientation.

The 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. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense.

The third principle 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. Without the recognition, stability, and predictability marriage offers, 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 to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

The fourth principle is that this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the many benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable.

Given these principles, the limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.

c. The Fourteenth Amendment’s guarantee of equal protection, Pp. 19-22

The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has previously invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage and confirmed the relation between liberty and equality.

The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The 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.

d. The right to marry as a fundamental right inherent in the liberty of the person, Pp. 22-23

Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent that they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

4. Reasons for not delaying a decision on the matter any longer, Pp. 23-27

There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns, along with studies and other writings, and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. The respondents’ argument that allowing same-sex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.

5. The recognition of lawfully performed marriages, Pp. 27-28

Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

The decision of the United States Court of Appeals for the Sixth Circuit is hereby reversed. The Supreme Court, in this decision, holds that same-sex cou­ples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

KENNEDY delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN joined. ROBERTS filed a dissenting opinion, in which SCALIA and THOMAS joined. SCALIA filed a dissenting opinion, in which THOMAS joined. THOMAS filed a dissenting opinion, in which SCALIA joined. ALITO filed a dissenting opinion, in which SCALIA and THOMAS joined.


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