Obergefell v. Hodges

Summary

Obergefell v. Hodges, decided on 26 June 2015, asked whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex, and to recognize such a marriage lawfully performed in another state. Michigan, Kentucky, Ohio and Tennessee defined marriage as the union of one man and one woman. Fourteen same-sex couples and two widowers sued state officials; James Obergefell asked Ohio to list him as the surviving spouse on the death certificate of John Arthur, whom he had married in Maryland in 2013. The district courts ruled for the couples, but in 2014 the Sixth Circuit reversed, holding that the question belonged to the voters and legislatures of each state. The couples argued that marriage is a fundamental liberty under the Due Process Clause, that the reasons the Court had long given for protecting it apply to them, and that denying them its legal status and benefits violates the Equal Protection Clause. The states argued that the Constitution does not define marriage, that the understanding of marriage as a union of man and woman is ancient and connected to the begetting and rearing of children, and that a question so basic should be settled by democratic deliberation, then under way in many states. Justice Kennedy, writing for five Justices, reversed. He traced the long history of marriage and its changes, and identified four principles in the Court's precedents: the right to marry rests on individual autonomy, supports a two-person union of unique importance, safeguards children and families, and is a keystone of the social order. He held that these apply equally to same-sex couples, that the Due Process and Equal Protection Clauses reinforce each other, that individuals need not await legislative action to assert a fundamental right, and that states must recognize such marriages performed elsewhere. He added that religious organizations and persons remain protected by the First Amendment as they teach their beliefs about marriage. Four Justices dissented in separate opinions. Chief Justice Roberts wrote that the Court is not a legislature, that the definition of marriage found in every culture is not irrational, and that the majority's method resembled discredited substantive due process decisions such as Lochner. Justice Scalia wrote that the decision took a question from the people and placed it with a majority of nine lawyers. Justice Thomas argued that liberty in the American tradition means freedom from government action, and that human dignity is innate rather than conferred by the state. Justice Alito wrote that the right lacks roots in history and tradition, warned of consequences for Americans holding traditional beliefs, and defended federalism as a way for people who disagree to live together. The library text gives the majority opinion and excerpts of the four dissents, without notes. Congress passed the Respect for Marriage Act, signed on 13 December 2022. The decision remains debated, and later cases such as Masterpiece Cakeshop (2018) and 303 Creative (2023) addressed claims of religious liberty and free speech.

Plot or Argument

• Kennedy, Parts I-II: the petitioners and the history of marriage

  Kennedy introduces the four states, the couples and the two questions granted, then describes marriage from Confucius and Cicero onward as an institution of transcendent importance whose legal form has changed over time, as with the end of coverture, before recounting changing public and legal understandings of gays and lesbians.

• Kennedy, Part III: four principles and equal protection

  The opinion holds that the reasons marriage is a fundamental right under Loving, Zablocki and Turner apply with equal force to same-sex couples, overrules Baker v. Nelson (1972), and treats the Due Process and Equal Protection Clauses as mutually reinforcing.

• Kennedy, Parts IV-V: democracy, religion and recognition

  Answering the call for caution, Kennedy notes extensive public debate but holds that fundamental rights do not depend on elections. He states that religious believers may continue to advocate their views, rejects the argument that the ruling will weaken marriage, and holds that states must recognize marriages lawfully performed elsewhere.

• Roberts dissent: who decides what marriage is

  The Chief Justice grants the appeal of the petitioners' policy arguments but insists that the Court is not a legislature. He reviews the universal understanding of marriage as a man-woman union tied to children, and likens the majority's reasoning to Lochner-era substantive due process, warning that it removes the question from democratic debate.

• Scalia dissent: a threat to self-government

  Scalia writes that the substance of the decision matters less to him than who rules, objecting that the Court has displaced a vigorous democratic debate and criticizing the reasoning and style of the majority opinion.

• Thomas dissent: liberty and dignity

  Thomas argues that the Due Process Clause guarantees process, not substantive rights, that liberty historically meant freedom from government interference rather than a claim to government recognition, and that dignity is innate and cannot be given or taken by the state.

• Alito dissent: tradition, purpose and federalism

  Alito applies the Glucksberg test of deep roots in history and tradition, explains the traditional link between marriage and children, predicts difficulties for people holding traditional views, and argues that leaving the question to the states would have allowed different communities to reach different answers.

Characters

• Anthony M. Kennedy, Associate Justice; author of the opinion of the Court

  Wrote for five Justices that the Fourteenth Amendment protects the right of same-sex couples to marry.

• John G. Roberts Jr., Chief Justice; principal dissent

  Argued, joined by Scalia and Thomas, that the Constitution leaves the definition of marriage to the people of each state.

• Antonin Scalia, Associate Justice; dissent

  Wrote separately, joined by Thomas, on what he saw as a threat to democratic self-government.

• Clarence Thomas, Associate Justice; dissent

  Wrote, joined by Scalia, on the meaning of liberty and the source of human dignity.

• Samuel A. Alito Jr., Associate Justice; dissent

  Wrote, joined by Scalia and Thomas, on tradition, the purposes of marriage law and federalism.

• James Obergefell, petitioner

  Ohio resident who sought to be listed as surviving spouse on the death certificate of John Arthur.

• Richard Hodges, respondent

  Director of the Ohio Department of Health, responsible for death certificates, whose name the case bears.

• April DeBoer and Jayne Rowse, petitioners

  Michigan nurses whose case concerned the adoption of the children they were raising.

Lessons

• Two readings of liberty

  Justice Kennedy reads the liberty of the Fourteenth Amendment as protecting certain personal choices central to identity, identified through reasoned judgment guided by precedent. Justice Thomas reads liberty as freedom from government action, and Justice Alito as limited to rights deeply rooted in history and tradition. Each view has a long lineage in American law.

  • How does Kennedy say courts should identify fundamental rights?
  • What does Thomas mean by contrasting freedom from government with entitlement to government benefits?
  • Which method gives judges more discretion, and which gives the people's representatives more?

• Courts, legislatures and timing

  The majority held that individuals need not wait for legislatures to vindicate a fundamental right. The Chief Justice and Justice Scalia answered that the Court had ended a democratic debate in which both sides were persuading fellow citizens. The disagreement concerns the proper role of judges as much as marriage itself.

  • What evidence of public deliberation does Kennedy cite?
  • Why does Roberts say the decision ends the democratic process on this question?
  • When, if ever, should courts decide questions on which the public is still divided?

• Defining an institution

  The majority described the purposes of marriage in terms of commitment, companionship and the protection of children and families; the dissenters stressed its historic connection to the union of man and woman and the rearing of children. Each side drew on the same long history of marriage to support its conclusion.

  • What four principles does Kennedy identify?
  • How does Alito describe the traditional purpose of marriage laws?
  • Can a court interpret an institution without first defining it?

• Conscience in a divided nation

  Kennedy wrote that religious persons may continue to advocate their convictions under the First Amendment. Alito and Roberts doubted that assurance would prove sufficient, and Alito argued that federalism would have allowed communities to differ. The question of how people with deep disagreements live together runs through all five opinions.

  • What protection does the majority promise for religious believers?
  • Why did several dissenters doubt it would be enough?

Context

In Baker v. Nelson (1972) the Court dismissed a same-sex marriage appeal for want of a substantial federal question. Massachusetts became the first state to issue such licenses after its highest court's 2003 decision; other states adopted constitutional amendments defining marriage as the union of a man and a woman, and Congress passed the Defense of Marriage Act in 1996. In United States v. Windsor (2013) the Court struck down the federal definition in that act, and lower courts then divided over state laws, setting up a conflict the Court agreed to resolve.

Composition

The Sixth Circuit's decision in DeBoer v. Snyder (November 2014) upheld the four states' laws, creating a split with other circuits. The Court granted review in January 2015, limited to the licensing and recognition questions, consolidated the cases from Ohio, Michigan, Kentucky and Tennessee, and heard extended argument on 28 April 2015. The library text includes Kennedy's full opinion and excerpts of the four dissents.

Reception

Every state began issuing licenses following the decision. In Dobbs v. Jackson Women's Health Organization (2022) the majority stated that its ruling concerned abortion only and did not cast doubt on other precedents, while Justice Thomas's concurrence urged reconsideration of substantive due process decisions generally. Congress enacted the Respect for Marriage Act in December 2022. Legal scholars, religious communities and citizens continue to hold sharply different views, and the decision remains debated more than a decade after it was handed down.

Comparisons

• dobbs-v-jackson-womens-health-organization

  Both decisions turn on how to read the liberty of the Due Process Clause; Dobbs applied the history-and-tradition test that Alito and Roberts urged in their Obergefell dissents, while stating that marriage precedents were not at issue.

• roe-v-wade

  Roe and Obergefell are leading examples of the Court recognizing an unenumerated right under the Fourteenth Amendment, and in both the dissenters argued that the matter belonged to state legislatures.

• lochner-v-new-york

  Chief Justice Roberts cites Lochner and Justice Holmes's dissent in it as a warning against judges reading their own views into the Due Process Clause.

• the-federalist-papers

  Roberts quotes Hamilton's Federalist No. 78 that courts exercise neither force nor will but merely judgment, the core of his objection.

• the-founding-documents

  Thomas appeals to the Declaration of Independence on innate human dignity, and all five opinions interpret the Fourteenth Amendment.

• democracy-in-america

  Tocqueville's reflections on the family, religion and mores as foundations of American democracy illuminate both Kennedy's account of marriage as a keystone of social order and the dissenters' appeal to local self-government.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• Kennedy's historical survey of marriage and the changes he identifies in its legal form.
• The four principles and traditions the majority draws from earlier right-to-marry cases.
• The majority's paragraph on religious believers and the First Amendment.
• Roberts's use of Federalist No. 78 and of Lochner v. New York.
• How Thomas and Alito each define liberty and tradition.

Key terms and names

Due Process Clause

The Fourteenth Amendment provision forbidding states to deprive any person of life, liberty or property without due process of law.

Equal Protection Clause

The Fourteenth Amendment provision forbidding states to deny any person the equal protection of the laws.

Substantive due process

The doctrine that the Due Process Clause protects certain rights from state interference, not merely fair procedures; the dissenters criticized it.

Fundamental right

A right the Court treats as so important that the state may restrict it only for the strongest reasons.

Federalism

The division of authority between the national government and the states.

Overrule

To declare that an earlier decision is no longer good law, as the Court did with Baker v. Nelson.

Seminar Questions

1. Comprehension What two questions did the Court agree to decide?
2. Comprehension What are the four principles Kennedy identifies, and what is the central objection of Roberts's dissent?
3. Comprehension What did the majority say about religious organizations and persons who hold traditional views of marriage?
4. Interpretation How do Kennedy and Thomas each understand the relationship between human dignity and the law?
5. Interpretation Why do the majority and the dissents reach opposite conclusions from the same long history of marriage?
6. Big Question How should citizens who disagree deeply about the meaning of marriage live together under one Constitution?

Faith Connections

• Genesis 2:24 and Matthew 19:4-6 (Scripture)

  The Christian church has traditionally grounded its teaching on marriage in these passages, and believers holding that teaching were among those whose religious liberty the majority and dissents discussed.

• 1 Peter 3:15-16 (Scripture)

  Peter urges believers to give a reason for their hope with meekness and a good conscience, a model for respectful argument on questions where neighbors disagree.

• Aristotle, Politics, Book I (Great Conversation)

  Aristotle begins political philosophy with the household as the first community, a starting point both Kennedy's keystone principle and the dissenters' appeal to tradition echo in different ways.

Logic and Rhetoric

Central argument: Majority: because the reasons the Constitution protects marriage as a fundamental liberty apply equally to same-sex couples, and because equal protection reinforces that liberty, states must license and recognize their marriages. Dissents: because the Constitution does not define marriage and the traditional definition is rational, the question belongs to the people of each state, and the Court's method substitutes judicial will for legal judgment.

Rhetorical device: framing by institutional role. Roberts opens by declaring that the Court is not a legislature (quote 2), recasting the case from a question about marriage into a question about who decides, while Kennedy closes with a description of marriage itself (quote 0).

Debate: Resolved: that the definition of civil marriage should be decided by state legislatures and voters rather than by the federal courts.

Memory Work

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.

Writing Prompts

Essay: Present Justice Kennedy's strongest argument and Chief Justice Roberts's strongest argument in their own terms and at equal length, then identify the single question on which their disagreement finally turns.

Comparison with The Federalist Papers: Using Hamilton's description of the judiciary in Federalist No. 78, explain how the majority and the Chief Justice each understand the proper exercise of judgment by the Court.

Medical Lens

The opinions concern the constitutional status of marriage, democratic process and religious liberty and contain no medical discussion.

Creative Prompts

• Classroom

  Hold a structured seminar in which one group summarizes Kennedy's four principles and another summarizes the four dissents, each in the authors' own terms, before any student offers a personal view.

• Essay

  Write a brief for the states and a brief for the petitioners on the narrow question of who should decide, each drawing only on Federalist No. 78 and the text of the Fourteenth Amendment.

• Essay

  Compare the methods for identifying fundamental rights in Kennedy's opinion and Alito's dissent, explaining how each would decide a new claim of an unenumerated right.

• Dialogue

  Write a respectful conversation between two law students in 2015, one persuaded by the majority and one by the Chief Justice, in which each must restate the other's argument fairly before answering it.

Further Reading

• Love Wins: The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality, Debbie Cenziper and Jim Obergefell

  Narrative of the litigation co-written by the lead petitioner.

• What Is Marriage? Man and Woman: A Defense, Sherif Girgis, Ryan T. Anderson and Robert P. George

  Philosophical defense of the conjugal understanding of marriage, published before the decision and cited in the debate.

• Debating Same-Sex Marriage, John Corvino and Maggie Gallagher

  Point-and-counterpoint book in which two authors on opposite sides each present and answer arguments.