If you have read the first two posts in this series, you know that Obergefell is the recent U.S. Supreme Court decision legalizing same-sex marriage. If you haven’t read the first posts in the series, I have set up a landing page with links to the earlier posts and a link to a PDF version of the decision. If you are interested in this discussion and keep reading along, it will help you if you have a copy of the decision to read sections when I refer to them. You can find the link page here.
I need to talk about one more thing before we begin. The Court uses the term “homosexuality” when describing the sexual orientation of people who are gay and lesbian. I’m not comfortable with the term for two reasons. First, my classmates in college who were lesbian objected to being called “homosexual.” They believed that the “homo” in homosexual was used in the same sense as the “homo” in homosapien. Therefore, it was a term that should be used only to describe men. The correct term for women was lesbian. I know that “homo” in homosexuality really means “similar” as in a homogenous group. But, they made a big impact on me and I have carried that sensitivity for decades. Second, though the word “homosexual” began as a clinical term to describe same-sex attraction, it has taken on a derogatory sense. Maybe I am being overly sensitive and politically correct, but I promised to be honest with you. That is all to say that I will use the word “homosexual” throughout my posts on the case because the Court uses the word in the various decisions. I’ll deal with my personal discomfort and if you are offended by the word, I apologize and at least you know that I don’t mean to use it offensively.
The majority opinion was written by Justice Kennedy.
Section I of the decision sets up what is called the procedural posture of the case. The Court explains briefly how the 14 cases came to the Court and the two questions that the Court has agreed to answer.
Section II gives some historical background. Justice Kennedy begins by saying, “Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.” He then begins a seven-page survey of society’s understanding of marriage and society’s understanding of homsexuality. He says of marriage that “[t]he lifelong union of a man and a woman has always promised nobility and dignity to all persons without regard to their station in life.” He admits that, “historically, marriage has been the union of two people of opposite sex. That history is the beginning of these cases, The respondents [the States arguing that marriage should remain a union between people of opposite sex] say it should be the end as well.”
Justice Kennedy then talks about the States’ assertion that it would demean the timeless institution of marriage by extending the status to two people of the same sex. He says that, far from wanting to devalue marriage, the petitioners [the 14 people who want the law changed] seek marriage for themselves because they respect – and need – the privileges and responsibilities that marriage carries with it.” He concludes this section of the introduction by telling the stories of three sets of the 14 petitioners.
James Obergefell and his partner. Arthur, lived in Ohio. Arthur was diagnosed with ALS in 2011 and they decided to marry before Arthur died. They travelled to Maryland for the ceremony, which was difficult for Arthur because of his medical condition. Three months later, Arthur died. Ohio law does not allow James to be listed as the surviving spouse on Arthur’s death certificate and, as Justice Kennedy says it, “By statute, they must remain strangers even in death, a state-imposed separation that [James] ‘deems hurtful for the rest of time'”
April and Jayne are co-plaintiffs from Michigan. They are both neonatal nurses and, between them, they have adopted three children. But, the state of Michigan only allows adoptions by married couples and single people. In Michigan, same-sex couples are not allowed to marry, so each child can be adopted by only one of them as his or her legal parent. Justice Kennedy explains that this situation could cause a problem in emergency situations where a school or hospital may treat the child as having only one parent who could make medical decisions. Further, if one of the women were to die, the other would have no legal rights over the children that she was not permitted to adopt.
Finally, Ijpe DeKoe and his partner Thomas Kostra are from Tennessee. Ijpe is in the Army Reserve and was deployed to Afghanistan in 2011. They were married in New York before his deployment. When he returned, they settled in Tennessee where Ijpe works for the Army Reserve. Tennessee does not recognize the couple’s New York marriage and, as a result, Justice Kennedy says “[T]heir lawful marriage is stipped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.”
Justice Kennedy then discusses the deep changes that have occurred in our understanding of marriage over the past centuries, Marriages were at one time arranged relationships. They became relationships where the couple was treated by the state as one male-dominated entity. Over time, we have seen that women are an equal partner in marriage. Finally, we have seen that marriage is based on romantic love. He says that these are new insights that have resulted in a deep transformation in the structure of marriage.
He closes the introduction with a brief description of society’s changing attitudes toward homosexualty. He explains that society now understands that sexual orientation is an immutable characteristic and a normal expression of human sexuality. The legal standing of homosexuals has similarly changed over this time. At one time, intimate relations between two people of the same sex was a criminal offense. The laws have changed and homosexuality has entered the main stream. Those are my words, not his, but I think they reflect the point that he is trying to make.
It is against this changing understanding of marriage and of sexual orientation that the legal question about same-sex marriage has come up. Some State legislatures (or state Supreme Courts interpreting the state’s constitution) have legalized same-sex marriage. Other states have not. Numerous cases about same-sex marriage have reached the Unites States Courts of Appeals in recent years and the appeals courts have reached different decisions about the legality of same-sex marriage. This “split in the circuits” as it is called, gives the U.S. Supreme Court the authority to hear these cases and issue a decision that will unify the courts. Also, he notes that the states are still divided on the subject of same-sex marriage even though they have had years to try and work it out.
It is against this background that Justice Kennedy begins his legal analysis and I will begin covering his legal analysis in the next post. Thank you for reading along. Please leave me comments and questions.