Assignment Overview Unit 3
The Supreme Court reviewed the Obergefell v. Hodges case after a circuit split between the trial court and the U.S. Court of Appeals for the Sixth Circuit. James Obergefell et al. had filed a lawsuit with the trial court challenging the constitutionality of four states, Ohio, Michigan, Kentucky, and Tennessee, to ban same-sex marriage and refusal to acknowledge legal same-sex marriages approved in other jurisdictions. The trial court held that the states had violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment and ruled in favor of the plaintiffs while the Appeal Court reversed the ruling. Upon a review by the Supreme Court, the decision by the trial court was upheld, stating that the Fourteenth Amendment required the states to license and approve marriage between two people of the same sex. While the decision of the majority was based on existing provisions of the Fourteenth Amendment of the Constitution, they surpassed their judicial power by establishing and enforcing a non-existent right in the Constitution.
The Argument over Substantive Due Process
One of the arguments presented by the plaintiffs was that the four states had violated their substantive due process. Notably, the claim was based on provisions of the Fourteenth Amendment’s substantive due process, which is interpreted to include liberty in terms of the right to marry, and raise one’s children as a parent (“Due Process,” n.d.). In this context, the plaintiff argued that the state’s decision to ban same-sex marriage was a violation of their right to marry as provided in the Constitution.
The plaintiffs also opinionated that the states’ policy had violated the Equal Protection Clause. Notably, the Equal Protection Clause of the Fourteenth Amendment requires states to practice equal protection by not distinguishing between individuals on differences that are irrelevant to legitimate governmental objectives (“Equal Protection,” n.d.). Similarly, the plaintiffs viewed the refusal of the four states to recognize legal same-sex marriages instituted in other jurisdictions as an impartial form of governing and discrimination against same-sex couples.
Based on the questions raised during the review, the Court ruled that the Fourteenth Amendment required the states to license and recognize same-sex marriages whether or not they had occurred within their jurisdiction. The ruling was based on the provisions of the Due Process and Equal Protection Clauses. According to the majority, the Due Process Clause protects the right to marry as a fundamental liberty. As such, same-sex couples were equally protected by the clause, and when invoked in this case, the clause provided the right for them to marry, build homes, and raise children. The Court also ruled that the Equal Protection Clause provided same-sex couples protection against discrimination by the state. Hence, the refusal to recognize same-sex legal marriages was considered an infringement of the clause under the law.
Two other similar cases may have laid the foundation for the Obergefell v. Hodges case; Bowers v. Hardwick and Lawrence v. Texas. In the first case, Michael Hardwick challenged the constitutionality of the Georgia statute, which criminalized him for consensual same-sex sodomy (“Lawrence v. Texas,” n.d.). The Court ruled that the Constitution did not offer protection against such statute, nor did it guarantee same-sex couples the right to sodomy. A different ruling was made in the Lawrence v. Texas case, in which the defendant was arrested and convicted of deviate sexual intercourse in violation of a Texas statute that forbade same-sex persons from engaging in certain intimate sexual conduct (“Lawrence v. Texas,” n.d.). The Court ruled that the Texas statute violated the exercise of liberty by the petitioner as guaranteed under the Due Process Clause and overruled the decision made in Bowers v. Hardwick case. The two instances addressed issues of same-sex couples and provisions of the Equal Protection and Due Process Clause; thus, they may have laid the foundation for the case in context.
Several societal factors influenced the Court’s decisions in the Bowers v. Hardwick, Lawrence v. Texas, and Obergefell v. Hodges cases. Notably, during the hearing of the Bowers v. Hardwick case, the majority of the states in the country had sodomy laws, which allegedly protected public morals and decency (Weinmeyer, 2014). Thus, coupled with the then-existing statutes, the society highly criticized same-sex intimate acts and greatly influenced the Court’s decisions on consensual same-sex sodomy. However, by the time of the hearing of the Lawrence v. Texas case, several sodomy laws had been lifted. As observed by Weinmeyer (2014), persecution of private sexual acts between consenting parties had begun generating criticism from highly influential legal authorities such as legal scholars and practitioners, leading to massive reform of the laws and pronunciation of same-sex sodomy as a misdemeanor crime. The changes in the law and the gradual liberalization of the American society likely influenced the decision of the Court to strike down the Texas Sodomy law and grant petitioners protection of liberty under the Fourteenth amendment.
The most recent case, Obergefell v. Hodges, also exemplified changes in society’s perception of same-sex marriage, which led to the legitimization of such norms. Hart-Brinson (2016) argues that the changing social imagination of homosexuality accounts for the increase in support for same-sex marriage in the United States. Notably, the liberalization of American society had a significant influence on the legitimization of same-sex marriages, which in turn influenced the Court’s decision on such matters.
The Opinion of the Dissenting Justices
Part of the Justices in the Obergefell v. Hodges case dissented with the majority opinion on the claim of an overstep of judicial bounds. According to Chief Justice John G. Roberts, the Constitution did not specifically address the issue of same-sex marriage; thus, the concept could not be included in the ruling (“Obergefell v. Hodges,” n.d.). Justice Scalia and Thomas also argued that the majority opinion overstretched the doctrine of substantive due process and departed from the established legal amendment to create a right, in which none existed (“Obergefell v. Hodges,” n.d). Hence, the majority’s decision to mandate states to recognize same-sex marriages that occurred in other jurisdictions was considered an unconstitutional attempt by the judiciary to establish and enforce non-existing laws.
The Justice also dissented with the majority opinion on the claim that the Fourteenth Amendment did not require a state to license a marriage between two people of the same sex. As argued by Chief Justice John Roberts, it was “beyond the purview of the court to decide whether states have to recognize or license such unions” (“Obergefell v. Hodges,” n.d.). Instead, the Justice acknowledged that such matters lie within the jurisdiction of the state through the power vested in voters to pass laws that legitimized certain norms. The dissenting Justice stated it was unconstitutional for the majority to make such a decision on behalf of the state.
Based on an assessment of the arguments presented by the circuit, I agree with the dissenting Justices that the majority surpassed their judicial power by establishing and enforcing non-existence right in the Constitution. For instance, the opinion by Justice Antony Kennedy that the Fourteenth Amendment guarantees the right to marry a same-sex couple in the same manner as it does to opposite-sex couples was an erroneous interpretation of the Constitution and an establishment of non-existence right. Notably, although the Defense of Marriage Act was struck down as unconstitutional by the Supreme Court, some states still rely on the traditional meaning of marriage as defined in 1996, “a legal union between one man and one woman as husband and wife” (“Marriage,” n.d.). Besides, each state had the anonymity to choose whether to adhere to the traditional definition of marriage or expand the meaning to include same-sex union. Therefore, it was unconstitutional for the majority to declare a right that was not guaranteed by the Constitution and standardly unaccepted in all states.
Furthermore, I agree with the dissenting Justice because the judicial power in the case in context was blatantly surpassed. According to the Constitution, States are permitted to reasonably regulate marriage (“Marriage,” n.d.). The regulation includes prescribing and prohibiting marriage as deemed reasonable. Therefore, it was unconstitutional for the majority to decide whether the states had to recognize and license same-sex marriages. Besides, the matter in question involved competing interests that greatly impacted electorates in the four states. Therefore, it was the right of the states, through the legislature and electorates, to decide whether to ban or accept same-sex unions. Hence, the decision by the majority to pass sensitive legislation without the consent of states was an infringement on the former’s authority.
“Bowers v. Hardwick” (n.d.). Oyez. https://www.oyez.org/cases/1985/85-140
“Due process” (n.d.). Legal Information Institute. https://www.law.cornell.edu/wex/due_process
“Equal protection” (n.d.). Legal Information Institute. https://www.law.cornell.edu/wex/equal_protection
“Lawrence v. Texas” (n.d.). Oyez. https://www.oyez.org/cases/2002/02-102
“Marriage” (n.d.). Legal Information Institute. https://www.law.cornell.edu/wex/marriage
“Obergefell v. Hodges” (n.d.). Oyez. https://www.oyez.org/cases/2014/14-556
Hart-Brinson, P. (2016). The social imagination of homosexuality and the rise of same-sex marriage in the United States. Sociological Research for a Dynamic World, 2, 1-17. https://doi.org/10.1177%2F2378023116630555
Weinmeyer, R. (2014). The decriminalization of sodomy in the United States. AMA Journal of Ethics, 16(11), 916-922. https://doi.org/10.1001/virtualmentor.2014.16.11.hlaw1-1411