London, 7 July 2015
In a 5 – 4 ruling delivered on 26 June 2015, the US Supreme Court determined that the right to marriage equality was protected by the Fourteenth Amendment of the Constitution. The decision in the case, Obergefell v Hodges, means that same-sex marriage is now legal in all 50 US states.
Crucially, and in stark contrast to the dissenting justices, the majority considered that it was the role of the Court to decide on the constitutional protection provided to same-sex couples.The petitioners in the case were two men whose same-sex partners had passed away and 14 further same-sex couples.
Each sought either recognition of their right to marriage as a same-sex couple or the right to have their marriages lawfully performed elsewhere recognised in their home state. In the case from which the judgment takes its title, James Obergefell sought to be recognised as the surviving spouse on the death certificate of his husband, who had passed away three months after their marriage in another state. In each case, the respective state District Court found in favour of the petitioner, a decision overturned when the Court of Appeals for the Sixth Circuit heard the respondents' appeals in one consolidated case.
The majority of the Supreme Court found that the marriage laws challenged by the petitioners burdened their liberty and were “in essence unequal”, denying same-sex couples the rights and benefits granted to opposite-sex couples. In finding that the Constitution granted the right to marriage to same-sex couples, Justice Kennedy, writing for the majority, noted the evolving nature of the Constitution:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
The majority also noted that while the Constitution considers democracy as the process through which change should occur, it also requires that the courts provide redress for violations of a person’s rights, “even if the broader public disagrees and even if the legislature refuses to act”.
This approach was in stark contrast to that expressed in the four separate dissents. In a scathing dissent, Justice Scalia wrote to “call attention to this Court’s threat to American democracy”. He went on to state that:
“This practice of constitutional revision by an unelected committee of nine (…) robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
His sentiments were echoed in each of the dissents, all of which considered that the Constitution left the question of whether to permit same-sex marriage to the people of each state.
The Equal Rights Trust welcomes the majority decision of the Supreme Court, which makes the US the twentieth country to recognise the right to marriage for same-sex couples. The Court’s willingness to recognise that the majority will does not trump fundamental rights to equal protection is particularly welcome. States must now act to implement the decision urgently to allow same-sex couples to marry and to work towards ending discrimination against LGBT persons by passing comprehensive anti-discrimination laws covering both sexual orientation and gender identity.
To read the Equal Rights Trust’s case summary click here