Presidents and the Supreme Court: Barack Obama and Obergefell v. Hodges
Sometimes reading law can be boring, even for lawyers. But a review of the court's reasons for decision can often be enlightening. Aside from the benefit of accuracy that is gained from going to source information, it also allows the reader to separate fact from spin and media sensation. The US Supreme Court's decision in Obergefell v. Hodges was a landmark 2015 decision that rules on whether or not same-sex couples had the right to marry. The decision had been eagerly awaited by those on both sides of the issue, and when it was handed down, President Barack Obama was quoted as saying "Today we can say, in no uncertain terms, that we've made our union a little more perfect."
The reasons for judgement in the case can be found here. The court's decision reads as if it is more about evolution of thought than about sexuality, morality or legal nicety. Even the dissenting opinions touch on that theme. (Dissenting opinions do not have the force of law, but the judges who write them hope that someday they will be persuasive in another case. Ooccasionally, they do). If you don't feel like reading 103 single spaced pages, I recommend you read the headnote. That's the part of the reasons on the first five pages, a one paragraph summary of the facts in the case, and a Reader's Digest version of what the court held. (Does anyone else remember the Reader's Digest?)
Of the 9 members of the US Supreme Court, five members of the court voted in support of the majority decision. The five justices in the majority, four of whom were appointed by Democratic Presidents, were Anthony Kennedy (who wrote the majority reasons, appointed by Ronald Reagan), Ruth Bader Ginsberg (Clinton), Stephen Bryer (Clinton), Sonya Sotomayor (Obama) and Elena Kagen (Obama). The four who wrote minority opinions, all appointed by Republican presidents, were Chief Justice John Roberts (George W. Bush), Antonin Scalia (Reagan), Clarence Thomas (George H. W. Bush) and Samuel Alito (George W. Bush).
The case came to the Court because the petitioners (14 couples and two widowers) challenged the laws of four states (Michigan, Kentucky, Ohio, and Tennessee) which define marriage as a union between one man and one woman. In the courts below, those petitioners argued that these laws violated the Fourteenth Amendment to the US Constitution (the right to equal protection under the law) by denying them the right to marry.
(1) Writing for the majority, Justice Kennedy pointed out that the history of marriage is not a timeless concept, it has evolved over time. To those who say that extending marriage to same sex couples would demean the institution if marriage were extended to same-sex couples, Kennedy explained why this was not so. As he put it:
"The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond."
(2) Kennedy went on to point out that the history of marriage is one of both continuity and change. As examples of changes he cited the decline of arranged marriages, and the abandonment of the law of coverture (in which a married woman was once considered to be her husband's property), and notes how these changes have strengthened, not weakened, the institution of marriage. He wrote:
"These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process."
(3) Kennedy noted changing societal views in how gay and lesbian rights have evolved from a time well into the 20th century, when laws condemned same-sex intimacy as immoral, and homosexuality was treated as an illness, to more recent times when public and private dialogue led to significant shifts in public attitudes and led to resulting in changes in the law. For example, in 2003, the Court overruled its earlier 1986 which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making same-sex intimacy a crime.
(4) Courts must exercise reasoned judgment in identifying interests which require protection under the 14th amendment. These interests have also evolved over time. This has included protection of the right to marry. For example previous court decisions have invalidated bans on interracial marriage, and have held that prisoners could not be denied the right to marry.
(5) In deciding whether these same principles apply to same-sex couples, the Court must consider the basic reasons why the right to marry has been protected in the past. Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples:
(a) The right to personal choice regarding marriage is a necessary part of the concept of individual autonomy. This is why the court invalidated the ban on interracial marriages. Decisions about marriage are among the most intimate and personal that an individual can make. This is true for all persons, whatever their sexual orientation.
(b) 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.
(c) The right to marry safeguards children and families and gives meaning to related rights of child rearing and education. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of believing 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 under consideration in this case 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. Married couple have the right not to procreate, so the right to marry cannot be conditional on the capacity or commitment to procreate.
(d) States have placed marriage 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 many benefits that the States have linked to marriage.It is demeaning to deny same-sex couples these same rights.
(6) The right of same-sex couples to marry comes from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected. The Court has acknowledged the connection of these constitutional safeguards in the context of the legal treatment of gays and lesbians and this also applies to same-sex marriage. are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.
(7) The right to marry is a fundamental right inherent in the liberty of the person, and 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.
(8) Baker v. Nelson (an earlier case of the court supporting the ban on same-sex marriage) is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; 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 by unconstitutional laws do not have to await legislative action before asserting a fundamental right.
(9) 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 important to them and to their faiths.
(10) The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. 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 simply on the grounds that it is a same-sex union.
Justice Kennedy's reasons end with this eloquent paragraph;
"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope 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."
A detailed discussion of the dissenting opinions can be found at this link.
In commenting on the decision, President Obama made these remarks:
This ruling is a victory for America. This decision affirms what millions of Americans already believe in their hearts: When all Americans are treated as equal we are all more free...
I know change for many of our LGBT brothers and sisters must have seemed so slow for so long. But compared to so many other issues, America’s shift has been so quick. I know that Americans of goodwill continue to hold a wide range of views on this issue. Opposition in some cases has been based on sincere and deeply held beliefs. All of us who welcome today’s news should be mindful of that fact; recognize different viewpoints; revere our deep commitment to religious freedom.
But today should also give us hope that on the many issues with which we grapple, often painfully, real change is possible. Shifts in hearts and minds are possible. And those who have come so far on their journey to equality have a responsibility to reach back and help others join them. Because for all our differences, we are one people, stronger together than we could ever be alone. That’s always been our story. We are big and vast and diverse; a nation of people with different backgrounds and beliefs, different experiences and stories, but bound by our shared ideal that no matter who you are or what you look like, how you started off, or how and who you love, America is a place where you can write your own destiny...
There’s so much more work to be done to extend the full promise of America to every American. But today, we can say in no uncertain terms that we’ve made our union a little more perfect. That’s the consequence of a decision from the Supreme Court, but, more importantly, it is a consequence of the countless small acts of courage of millions of people across decades who stood up, who came out, who talked to parents -- parents who loved their children no matter what. Folks who were willing to endure bullying and taunts, and stayed strong, and came to believe in themselves and who they were, and slowly made an entire country realize that love is love."
Here is a YouTube video of President Obama's complete remarks:
The reasons for judgement in the case can be found here. The court's decision reads as if it is more about evolution of thought than about sexuality, morality or legal nicety. Even the dissenting opinions touch on that theme. (Dissenting opinions do not have the force of law, but the judges who write them hope that someday they will be persuasive in another case. Ooccasionally, they do). If you don't feel like reading 103 single spaced pages, I recommend you read the headnote. That's the part of the reasons on the first five pages, a one paragraph summary of the facts in the case, and a Reader's Digest version of what the court held. (Does anyone else remember the Reader's Digest?)
Of the 9 members of the US Supreme Court, five members of the court voted in support of the majority decision. The five justices in the majority, four of whom were appointed by Democratic Presidents, were Anthony Kennedy (who wrote the majority reasons, appointed by Ronald Reagan), Ruth Bader Ginsberg (Clinton), Stephen Bryer (Clinton), Sonya Sotomayor (Obama) and Elena Kagen (Obama). The four who wrote minority opinions, all appointed by Republican presidents, were Chief Justice John Roberts (George W. Bush), Antonin Scalia (Reagan), Clarence Thomas (George H. W. Bush) and Samuel Alito (George W. Bush).
The case came to the Court because the petitioners (14 couples and two widowers) challenged the laws of four states (Michigan, Kentucky, Ohio, and Tennessee) which define marriage as a union between one man and one woman. In the courts below, those petitioners argued that these laws violated the Fourteenth Amendment to the US Constitution (the right to equal protection under the law) by denying them the right to marry.
(1) Writing for the majority, Justice Kennedy pointed out that the history of marriage is not a timeless concept, it has evolved over time. To those who say that extending marriage to same sex couples would demean the institution if marriage were extended to same-sex couples, Kennedy explained why this was not so. As he put it:
"The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond."
(2) Kennedy went on to point out that the history of marriage is one of both continuity and change. As examples of changes he cited the decline of arranged marriages, and the abandonment of the law of coverture (in which a married woman was once considered to be her husband's property), and notes how these changes have strengthened, not weakened, the institution of marriage. He wrote:
"These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process."
(3) Kennedy noted changing societal views in how gay and lesbian rights have evolved from a time well into the 20th century, when laws condemned same-sex intimacy as immoral, and homosexuality was treated as an illness, to more recent times when public and private dialogue led to significant shifts in public attitudes and led to resulting in changes in the law. For example, in 2003, the Court overruled its earlier 1986 which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making same-sex intimacy a crime.
(4) Courts must exercise reasoned judgment in identifying interests which require protection under the 14th amendment. These interests have also evolved over time. This has included protection of the right to marry. For example previous court decisions have invalidated bans on interracial marriage, and have held that prisoners could not be denied the right to marry.
(5) In deciding whether these same principles apply to same-sex couples, the Court must consider the basic reasons why the right to marry has been protected in the past. Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples:
(a) The right to personal choice regarding marriage is a necessary part of the concept of individual autonomy. This is why the court invalidated the ban on interracial marriages. Decisions about marriage are among the most intimate and personal that an individual can make. This is true for all persons, whatever their sexual orientation.
(b) 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.
(c) The right to marry safeguards children and families and gives meaning to related rights of child rearing and education. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of believing 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 under consideration in this case 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. Married couple have the right not to procreate, so the right to marry cannot be conditional on the capacity or commitment to procreate.
(d) States have placed marriage 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 many benefits that the States have linked to marriage.It is demeaning to deny same-sex couples these same rights.
(6) The right of same-sex couples to marry comes from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected. The Court has acknowledged the connection of these constitutional safeguards in the context of the legal treatment of gays and lesbians and this also applies to same-sex marriage. are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.
(7) The right to marry is a fundamental right inherent in the liberty of the person, and 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.
(8) Baker v. Nelson (an earlier case of the court supporting the ban on same-sex marriage) is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; 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 by unconstitutional laws do not have to await legislative action before asserting a fundamental right.
(9) 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 important to them and to their faiths.
(10) The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. 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 simply on the grounds that it is a same-sex union.
Justice Kennedy's reasons end with this eloquent paragraph;
"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope 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."
A detailed discussion of the dissenting opinions can be found at this link.
In commenting on the decision, President Obama made these remarks:
This ruling is a victory for America. This decision affirms what millions of Americans already believe in their hearts: When all Americans are treated as equal we are all more free...
I know change for many of our LGBT brothers and sisters must have seemed so slow for so long. But compared to so many other issues, America’s shift has been so quick. I know that Americans of goodwill continue to hold a wide range of views on this issue. Opposition in some cases has been based on sincere and deeply held beliefs. All of us who welcome today’s news should be mindful of that fact; recognize different viewpoints; revere our deep commitment to religious freedom.
But today should also give us hope that on the many issues with which we grapple, often painfully, real change is possible. Shifts in hearts and minds are possible. And those who have come so far on their journey to equality have a responsibility to reach back and help others join them. Because for all our differences, we are one people, stronger together than we could ever be alone. That’s always been our story. We are big and vast and diverse; a nation of people with different backgrounds and beliefs, different experiences and stories, but bound by our shared ideal that no matter who you are or what you look like, how you started off, or how and who you love, America is a place where you can write your own destiny...
There’s so much more work to be done to extend the full promise of America to every American. But today, we can say in no uncertain terms that we’ve made our union a little more perfect. That’s the consequence of a decision from the Supreme Court, but, more importantly, it is a consequence of the countless small acts of courage of millions of people across decades who stood up, who came out, who talked to parents -- parents who loved their children no matter what. Folks who were willing to endure bullying and taunts, and stayed strong, and came to believe in themselves and who they were, and slowly made an entire country realize that love is love."
Here is a YouTube video of President Obama's complete remarks: