Obergefell v. Hodges (Obergefell) was the recent groundbreaking Supreme Court case that legalized gay marriage across the entire United States. There is no doubt Obergefell will go down as one of the most widely known decisions the Supreme Court has made, in fact, Obergefell, broke the record for most amicus curiae briefs filed with the court (Record Number Of Amicus Briefs Filed In Same-Sex-Marriage Cases, April 28, 2015). While I think the case was decided correctly, the Court could have done more to protect the rights of LGBT people, but decided against it.
James Obergefell and John Arthur James were two gay men from the state of Ohio seeking to get married; Obergefell and James travelled to Maryland in 2013 to get married (LGBT Rights on the Docket: Obergefell v. Hodges). Upon return to Ohio, Obergefell and James wanted to file for an Ohio marriage license. This was particularly important because James suffered from amyotrophic lateral sclerosis (ALS) and did doctors did not expect him to live much longer (LGBT Rights on the Docket, n.d.). Obergefell wanted to be recognized as James’ spouse so he would have all the rights of a spouse after James’ death. James died several months into case and did not see the successful outcome (LGBT Rights on the Docket, n.d.). Obergefell and James, and several other plaintiffs that joined the case, filed suit against Richard Hodges in his official capacity as Director of the Ohio Department of health in the Sixth Circuit District Court, claiming that Ohio’s ban on same-sex marriage was unconstitutional (LGBT Rights on the Docket, n.d.).
Judge Timothy Black of United States District Court for the Southern District of Ohio ruled that Ohio’s same-sex marriage ban was unconstitutional, the same conclusion all lower federal courts had reached on the issue since the Supreme Court ruled in U.S. v. Windsor (Marriage Rulings in the Courts, Mar. 2, 2015).
Hodges appealed to the Sixth Circuit Court of Appeals, which ruled in a split decision that Ohio’s gay marriage ban was in fact constitutional. The Sixth Circuit was the first court to reach this conclusion (Marriage Ruling). The majority opinion did not discuss the actual legal merits of the case much at all, in fact the dissent stated that, “The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal.” (DeBoer v. Snyder, 43). Truthfully, it seems like the Sixth Circuit may have ruled gay marriage unconstitutional simply to create a split among the circuit courts and make it more likely that the Supreme Court would take the case.
Obergefell appealed to the Supreme Court, which agreed to hear the case. The two questions presented to the Supreme Court were, “Whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex”, and “Whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed performed in a State which does grant that right.” (Obergefell v. Hodges, United States Supreme Court, 2).
The Supreme Court’s precedent in this area is relatively thin in this area, but there are three cases that could be considered precedent. United States v. Windsor, Loving v. Virginia, and Lawrence v. Texas. Each of these cases, to varying degrees, was used to in the Court’s ruling in Obergefell.
United States v. Windsor (Windsor) is the most analogous case, it was decided in 2013, and set up Obergefell. In Windsor, Edith Windsor, a lesbian widow, who married her spouse in Canada, and New York recognized the marriage. The federal government passed a law recognizing marriage as between a man and a woman, thus they did not recognize Edith Windsor’s marriage. If the United States recognized Windsor’s marriage she would not have to pay any taxes to inherit her spouse’s estate, but because the federal government did not recognized the marriage Windsor was forced to pay $30,000 in taxes (New York Times, June 26, 2014). The Supreme held that the federal law was unconstitutional because it infringed on laws regarding marriage, which have historically been left to the individual states (New York Times, June 26, 2014). The Court also invalidated the law because it violated Windsor’s due process rights, under the Court’s analysis, by refusing to recognize a legal marriage, the federal government was discriminating against Windsor without good reason, and thus is unconstitutional (Scotusblog, June 26, 2013). The Court would rely on this decision heavily in Obergefell.
In Loving v. Virginia the Supreme Court ruled that marriage was a fundamental right and overturned Virginia’s interracial marriage ban.
In Perry v. Hollingsworth , the Supreme Court ruled that homosexual sodomy laws were unconstitutional. Lawrence expressly overturned the case Bowers v. Hardwick which ruled that homosexual sodomy bans were in fact constitutional.
In Lawrence vs. Texas
I would have reached the same conclusion as the Supreme Court did on Obergefell and legalize gay marriage across the nation; however, I would have used a different rationale that would give greater discrimination protections to gays. When analyzing Fourteenth Amendment issues, there are two possible avenues of analysis, due process analysis and equal protection analysis (The Gay Rights Controversy). The Supreme Court, and Justice Kennedy specifically because he wrote he majorities in both Windsor and Obergefell, chose to use the due process analysis to reach the conclusion that gay marriage bans are unconstitutional, the due process analysis is considered by many to be the a much more clumsy and disjointed way to do the analysis in the gay marriage cases (Ryan Goeller, March 4, 2014). The equal protection analysis would have required the Court to answer the difficult question of whether gays are a protected class, and gays would have more protection from discrimination if the Court decided that they were indeed a protected class (Marci, Hamilton, June 28, 2013).
Generally, “the doctrine of substantive due process extends protections to fundamental rights “in addition to the specific freedoms protected by the Bill of Rights.” (Kitchen v. Herbert, 10th Circuit Court of Appeals, 1209). The courts have held that the states and the federal may not deprive a person of fundamental rights. In Obergefell the Court had to consider whether marriage was a fundamental right; the Court has ruled numerous times that marriage is in fact a fundamental marriage. Thus, because marriage is fundamental refusing to recognize the marriage two consenting adults was a violation of their due process rights (Obergefell v. Hodges) that was the Court’s rationale.
As I said before I would have ruled on equal protection grounds. Under the equal protection analysis the Court would have first needed to determine if gays are a suspect classification. There are two suspect classifications; suspect classifications and quasi-classifications. Race, religion, national origin, and alienage are suspect classifications. Gender is a quasi-classifications. All other classifications such as age, creed, color or anything else are not considered protected classifications.
Protected classifications determine how the Court will analyze the case. If the person or group bringing the suit is not part of or a suspect class the challenged law will receive rationale scrutiny, which means the plaintiffs must prove that the law is not rationally related to a legitimate government interest, this is a very easy threshold for the government to meet.
If the person or group brining the suit is a quasi-suspect class the Court will analyze under intermediate scrutiny, which means the government must the challenged law is the challenged law must further “an important government interest by means that are substantially related to that interest.” Notice that the burden of proof shifted to the government. CORNELL LAWW
If the group bringing the suit is a suspect class the Court will analyze under intermediate, which is the most difficult threshold for the government to meet. Under strict scrutiny the government must show that the challenged law furthers “a ‘compelling governmental interest’ and must have narrowly tailored the law to achieve that interest.” CORNELL LAW.
It is likely that gays could be considered a quasi-suspected class. In order to be a quasi-suspect class the group must not be politically power and be based on an immutable characteristic (Marcy Straus, 143).. It seems likely that gays would meet these requirements and that be considered a quasi-suspect class. If gays were considered a quasi-suspect class, any law that discriminates against gays would have to meet the intermediate scrutiny threshold in order to constitutional. The ruling would not be limited to gay marriage, but would apply to gay rights altogether.
The Court has, so far, refused to discuss the issue of whether gays are a quasi-suspect class altogether. In his majority in Windsor does not discuss the issue explicitly, and the dissenting justices jump on that fact by stating that Kennedy is apply the rationale basis test to gays, and so they are not considered a suspect class. In Obergefell Kennedy once again does not discuss the issue of whether gays are a quasi-suspect class explicitly, and the dissenters once again state that Kennedy is analyzing the case under rationale basis, and gays are not granted quasi-suspect classification. Kennedy does leave a small breadcrumb for future litigators in Obergefell though, he explicitly states that being gay is an immutable characteristic (CITE). Which could very be the opening that grants gays suspect classification in the future.
If I were decided the case, I would have applied equal protection analysis, found that gays are a quasi-suspect class, and ruled that the gay marriage ban does not meet the rationale basis threshold, let alone the higher intermediate scrutiny threshold the government was obligated to meet.
Goellner, Ryan. “Where Due Process and Equal Protection Meet: Articulating the ‘Fundamental Right’ of Marriage.” University of Cincinnati Law Review. Retrieved from http://uclawreview.org/2014/03/04/where-due-process-and-equal-protection-meet-articulating-the-fundamental-right-of-marriage/
Kitchen v. Herbert, 10th Circuit Court of Appeals, 1209. Retrieved from https://www.ca10.uscourts.gov/clerk/news/opinion-court-no-13-4178-kitchen-et-al-v-herbert-et-al
”LGBT Rights on the Docket: Obergefell vs. Hodges.” ACLU of Ohio. Retrieved from http://www.acluohio.org/cases/obergefell-v-hodges
“Marriage Rulings in the Court.” (March 2, 2015). Freedom to Marry. Retrieved from http://www.freedomtomarry.org/pages/marriage-rulings-in-the-courts
Howe, Amy. “Details on United States v. Windsor: In Plain English”. SCOTUSblog. Retrieved from http://www.scotusblog.com/2013/06/detail-on-united-states-v-windsor-in-plain-english/
“The Gay Rights Controversy.” (n.d.) University of Missouri- Kansas City. Retrieved from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/gayrights.htm
Totenberg, Nina. “Record Number of Amicus Briefs Filed in Same-Sex-Marriage Cases.” NPR. Retrieved from http://www.npr.org/sections/itsallpolitics/2015/04/28/402628280/record-number-of-amicus-briefs-filed-in-same-sex-marriage-cases.
Wolf, Richard. “For same-sex marriage pioneer Edith Windsor, a very busy year.” (June, 26 2014). New York Times. Retrieved from http://www.washingtonpost.com/national/religion/for-same-sex-marriage-pioneer-edie-windsor-a-very-busy-year/2014/06/26/171f8df2-fd52-11e3-beb6-9c0e896dbcd8_story.html