My Thoughts on Obergefell v. Hodges

On June 26, 2015, the United States Supreme Court issued its opinion in Obergefell v. Hodges.  In my opinion, this decision is the most “landmark” opinion issued by the U.S. Supreme Court since I became a lawyer in 1994.  To most, this case might seem like just another important decision by our high court, but in time (I think many years hence from now), it will be looked upon as one of the greatest decisions ever made by the Supreme Court; ranking right up there with decisions like Brown v. Board of Education, Gideon v. Wainwright, and Roe v. Wade.

The majority of the Court in Obergefell held three points: One, that the right to marry is a fundamental right inherent in the liberty of the person, and therefore, 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.  Two, that same-sex couples may exercise the fundamental right to marry, and therefore, any State laws that exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples are unconstitutional and invalid.  And lastly, that there is no lawful basis for any State to refuse to recognize a same-sex marriage performed in another State on the grounds of its same-sex character (in other words, each State must recognize any same sex marriage created in another State and give it “full faith and credit”).

In my estimation the majority opinion in Obergefell is one of the most masterful pieces of precision writing I have read in quite some time.  Many critical commentators (including the dissenting justices) have criticized the majority decision as “legislating from the bench.”  Frankly, this is an old, tired, and hackneyed whine, usually made by conservatives that would rather see the Supreme Court be an inept and powerless entity of our governmental structure.  Anyone who believes that clearly never understood the importance and significance of Marbury v. Madison (an early U.S. Supreme Court decision that basically empowered the U.S. Supreme Court as our third branch of government).  Those same commentators might even think Marbury was wrongly decided, but anyone who thinks that really thinks there should only be two branches of government and not three.

Getting back on point, the majority of the Court in Obergefell did not make same sex marriage “legal;” it ruled that laws having the effect of prohibiting same sex marriage were unconstitutional as violating equal protection.  I think that is a huge and frequently underestimated distinction.  The former would be legislating from the bench, while the latter is actually fulfilling the role of the highest court in the land; that is… evaluating a law to see if it meets constitutional muster.

Same sex marriage was already “legal” in many of the States and it was not legal in others.  Here however is where I think this case becomes “landmark” territory… the majority of the Court basically found there is no “new” right or entitlement to same sex marriage; it was always there, just unrecognized up and until that point in time.  The decision simply is an evolution of thought, made manifest, that has finally caught up to the reality of natural human rights!

Frankly, it was shameful that it took until 1967 for the U.S. Supreme Court to decide Loving v. Virginia (the decision ruling anti-miscegenation laws [laws that enforced racial segregation at the level of marriage and intimate relationships by criminalizing interracial marriage and sometimes also sex between members of different races] unconstitutional), when in reality that decision should have been decided shortly after the 14th Amendment was ratified, but for society and the ever slow moving legal process to catch up.  Likewise, it is somewhat shameful that it took this long for our high court to find laws prohibiting same sex marriage illegal as well.

What is right is right, and what is wrong is wrong.  When people (and our courts) finally get around to realizing what is truly right or wrong… well, that’s an altogether different issue entirely.




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