Two years ago, the Supreme Court of the United States declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional in United States v. Windsor. In a 5-4 decision, Justice Kennedy wrote that Section 3 of DOMA, which defined marriage as only being between a man and a woman, was in violation of the Fifth Amendment’s Due Process Clause, as it singled out a class of persons that a state has determined is entitled to protection, imposes a disability on that class of persons, and requires that federal officials to treat same-sex couples validly married in states which allow it differently from their opposite-sex counterparts. For a more thorough analysis of the Windsor decision, check out our earlier blog post.
Windsor did not deal with the other operative section of DOMA, however. Section 2 remained effective, and was challenged in Obergefell v. Hodges, the decision of which was announced earlier today. Section 2 reads:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
The case posed two questions in its pleadings and oral argument on April 28, 2015:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Justice Kennedy, the Court’s traditional swing vote who served in such a role in Windsor, questioned whether the Court could redefine marriage to include same-sex couples when the history of marriage was reserved only to opposite-sex couples. During oral argument, Justice Kennedy remarked, “This definition [of opposite-sex marriage] has been with us for millennia. And it’s very difficult for the Court to say, oh well, we know better.”
Today, the Supreme Court announced, in a 5-4 decision, that the Fourteenth Amendment does require a state to license a marriage between two people of the same sex, and the Fourteenth Amendment does require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Justice Kennedy, despite his comments leading some to believe that he might rule differently, penned the majority decision, and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.
The majority opinion focused on marriage as a fundamental right based upon four principles and traditions: (1) the right to personal choice in marriage is inherent in the concept of individual autonomy; (2) marriage supports a two-person union unlike any other in its importance to the committed individuals; (3) marriage safeguards children and families; and (4) marriage is a keystone to our social order.
The majority opinion is written in a tone reflecting the significance of the decision. It opens:
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. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriage between persons of the opposite sex.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
All four in the minority (Chief Justice Roberts, Justices Scalia, Thomas, and Alito) each wrote their own dissenting opinions. Justice Scalia, in particular, was scathing of the majority opinion. In footnote 22 of his dissent, he writes:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 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,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Chief Justice John Roberts, in his twenty-nine page dissent (joined by Justices Scalia and Thomas), chastised the Constitutional logic of the majority, expressing his belief that the democratic process rather than the Court should have been able to decide this issue:
If you are among the many Americans–of whatever sexual orientation–who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
What Does The Majority Decision Mean?
- Same-sex couples in the United States can marry, regardless of what state they live in.
- Same-sex marriages must be recognized in all states, regardless of where the marriage was performed.
- The majority opinion did not specify a standard of scrutiny for future cases involving the legal classifications of same-sex couples brought under the Equal Protection Clause of the Fourteenth Amendment. That will have to wait to be decided at a later point.
- Federal benefits available to opposite-sex married couples (joint tax returns, retirement account survivor beneficiary designations, etc.), are available to same-sex married couples.
If you have any questions about same-sex marriage in Massachusetts, contact the attorneys at Finn & Eaton, P.C. in Woburn and Saugus by sending an email or calling 781 484-1066 to schedule your free initial consultation.