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. Continue reading


SCOTUS Same-Sex Marriage Oral Argument: Proceed or Wait and See?

Justice Kennedy has a lot to think about over the next two months when it comes to same-sex marriage.

His first question (third of the argument) raised an issue that was discussed throughout Mary Bonauto’s argument in favor of a constitutional right to same-sex marriage:  for millennia (not years, decades, or even centuries) marriage has been between a man and a women. Then Justice Breyer, ever the pragmatist, asked why states can’t just wait and see whether same-sex is harmful to traditional marriage. And should just nine people be deciding this question anyway? Continue reading


Supreme Court Will Decide Whether Same-Sex Marriage Bans are Unconstitutional

On Friday the Supreme Court elevated this term from mostly meat and potatoes to historic by agreeing to hear four same-sex marriage cases.  The Court will decide whether it is constitutional for states to prohibit same-sex marriage and whether states may refuse to recognize same-sex marriages lawfully performed out of state.


While the Court refused to hear a number of cases presenting the same issues earlier in the term, these grants came as little surprise.  Between then and now the Sixth Circuit ruled that same-sex marriage bans are constitutional, making it the only federal circuit to consider this question and reach that conclusion.  The four cases the Court granted came out of each state in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee).


Currently, same-sex marriages are allowed in 36 states.  In some of these states legislatures have passed laws recognizing same-sex marriage, in other states courts have struck down laws disallowing same-sex marriage.


The Court will hear oral argument in these cases at the end of April and will issue a decision by the end of June.

State and local governments, as issuers of marriage licenses and as employers, will be affected by the Court’s decision in these cases.  And the legal test that the Court applies to determine the outcome of these cases will have implications for other cases brought by gays and lesbians.


SCOTUSblog editor Tom Goldstein predicts that the Court will rule that same-sex marriage bans are unconstitutional.  In his opinion, just a few years ago, the Court may have only had one Justice willing to rule this way.  What has changed?  He suggests the following:  “The challenge to Proposition 8 [California’s same-sex marriage ban] . . . required that measure’s defenders to put forward actual evidence in court to justify the claim that same-sex marriage was somehow harmful.  The fact that they so publicly failed to do so was, to my mind, the most significant development in this movement.”