Obergefell v. Hodges: Licensing Same Sex Marriage (05/26/2015)

Obergefell v. Hodges

Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

Argued: 04/28/2015

Decision Date: 05/26/2015

Decision Record: 5-4; yes

Justices in Favor: Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan

Justices Dissenting: John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito

Effect of the Decision

This case ruled that states must accept and license same sex marriages.

In Favor

In the favoring side of this case, on the side of Obergefell, attorney Mary L. Bonauto argued, “The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society.

If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity. Indeed, the abiding purpose of the Fourteenth Amendment is to preclude relegating classes of persons to second-tier status.”


In the opposition, on the side of Hodges, attorney Donald B. Verrilli, Jr. argued, “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.

It demeans their children, and it denies the — both the couples and their children the stabilizing structure that marriage affords. Now, the Respondents’ principal argument, and what we’ve been discussing this morning so far, is whether this issue of — whether this discrimination should persist, is something that should be left to the political process or whether it should be something decided by the Court.

And I’d like to make three points about that, if I could. First, the — I think it’s important to understand that if this Court concludes that this issue should be left to the political process, what the Court will be saying is that the demeaning, second-class status that gay and lesbian couples now inhabit in — in States that do not provide for marriage is consistent with the equal protection of the laws.

That is not a wait-and-see.

That is a validation. And second, to the extent that the thought is that this can be left to the political process because this issue will take care of itself over time, because attitudes are changing, what I respectfully submit to the Court is that although no one can see the future perfectly, of course, that it seems much more likely to me that the outcome that we’re going to end up with is something that will approximate the nation as a house divided that we had with de jure racial segregation.”


On the side of the majority, Justice Anthony Kennedy wrote the opinion for the court. He wrote, “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.”

Then in dissent, Justice John Roberts wrote, “In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.”

My Opinion:

In this case, I disagree with the majority and agree with the minority. Requiring licensing of the same sex marriage might be equal, but it has nothing to do with the”equal protection of the law” clause of the Fourteenth Amendment. The Constitution states nothing having to do with marriage of the same sex. The Supreme Court’s job is the interpret the Constitution. Therefore, it is not the Supreme Court’s job to decide whether or not same sex marriage is legal. That should be determined by the state like it previously was. The majority side of the Supreme Court judges interpreted the Constitution too vaguely and crossed the boundaries. Like Chief Justice John Roberts wrote in his opinion, “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.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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