Same-Sex Couples Have A Constitutional Right to Marry

Obergefell v. Hodges will be celebrated and condemned internationally.

In a 5-4 decision written by Justice Kennedy the Supreme Court held that same-sex couples have a constitutional right to marry. All state laws and court decisions banning same-sex marriage are now invalid.

Justice Kennedy’s opinion can fairly be described as a celebration of marriage generally.  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”

More specifically, the majority opinion offers four principles that demonstrate why the fundamental right to marry applies with equal force to same-sex couples. First, the right to choose who you marry is “inherent in the concept of individual autonomy.” Second, because the right to marry is “unlike any other in its importance” it should not be denied to any two-person union. Third, marriage between same-sex couples safeguards children and families just as it does for opposite-sex couples. Finally, marriage is a keystone of American social order from which no one should be excluded.

The Court relied on the Constitution’s Fourteenth Amendment Due Process Clause and the Equal Protection Clause in its opinion. In previous marriage cases like Loving v. Virginia, invalidating bans on interracial marriage, the Court relied on both Clauses. The Court did not state what standard of review it applied to decide this case.

The Court rejected the argument that sufficient debate had not occurred over this issue noting that “individuals need not await legislative action before asserting a fundamental right.”

After acknowledging that many may take the view that same-sex marriage should not be condoned on religious grounds, the Court stated that the First Amendment protects this view and the views of religious organizations.

Justice Kennedy’s final words in his majority opinion well-summarize his opinion:

 [The] hope [of the same-sex couples in this case] 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.

Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented.