Obergefell Series Introduction

Originally published in July 2015

By now you have heard that the US Supreme Court has ruled that states must issue marriage licenses to same-sex couples and states must recognize the marriages of same-sex couples that were performed in other states.  You may read a lot of information from people who are for same-sex marriage or against same-sex marriage.  Some of the conversation on both sides is inflammatory.  What I would like to do here is give a simple summary of the decision.  I hope it will help you see through the smoke to what, I believe, are the core issues.  If you want to wade through the 100-page decision, I link to it at the end of this post.  If you are interested in the issue, I recommend reading it.

First, some basic information.  The case was a consolidation of four cases from the United States Court of Appeals for the Sixth Circuit, which sits in Cincinnati, Ohio and handles appeals from the states of Ohio, Michigan, Kentucky, and Tennessee.  The cases were from all four states.  In addition to the briefs filed by the Petitioners, the Court received 139 Amicus (or Friend of the Court) briefs arguing the two questions that the Court agreed to address in the appeal.

As additional background for those of you from outside the US as well as those who haven’t taken a civics class for a long time, the way our government is set up, the State is responsible for the health and welfare of its citizens.  That responsibility includes deciding who should be granted the legal rights that accompany civil marriage and how the State’s children will be educated, to name two examples.  Therefore, it is a big deal for the Supreme Court to step in and act as a “super legislature” that tells all the people of every state what the law requires them to do.  The Supreme Court has done that before in cases that you will recognize when I talk about them in later posts and, when you find out what the cases are, you will likely agree that the Court’s action in those cases was appropriate.

What were the questions that the Court agreed to address?  The first is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex.  The second is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a state which does not grant that right.  (I am going to leave out the citations to the decision.  If you really want to know where information came from, leave a comment.)  The Court split five to four on the two questions.

The Justices supporting the Majority opinion were: Kennedy (who wrote the opinion), Ginsburg, Breyer, Sotomayor and Kagan.  The dissenting Justices were: Roberts (Chief Justice), Scalia, Thomas, and Alito.  In addition to the Majority opinion, there were four dissents that were joined by various combinations of the dissenters.  No one dissent was joined by all the dissenting Justices.

The Court held that the 14th Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.  In the Majority opinion, Justice Kennedy relied on the Due Process and Equal Protection clauses of the 14th Amendment plus Supreme Court case law.

The dissenting opinions believed that the Due Process and Equal Protection clauses did not apply in these cases and that the question of licensing same-sex marriage should be left to the States’ legislative processes.  As Justice Roberts said, “[s]tealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”  The other dissenting opinions focused on different aspects of the argument, but ended at the same place; the question should be left to the States to sort out through the democratic process.

That is a very short summary of a very long decision.

One final takeaway, and this is where the controversy lies.  The Justices in the majority do not say in their opinion that they support the idea of same-sex marriage and neither do the Justices who dissented say they are against it.  The decision is based on the Constitution and case law.  Those who disagree argue that the majority opinion or the dissenting opinions were written out of a desire to see a certain outcome and not in accordance with the Constitution and the law.  A practice sometimes referred to as “judicial activism.”  We will likely not know the motives of any of the writers.  But, regardless of the side you line up on, I think it is important to understand the reasoning of the other side.  Not because of what it says about same-sex marriage, but because of what it says about how and when the Supreme Court will step into matters that are otherwise constitutionally the responsibility of the States.

In future posts, I will talk about the opinions in more detail along with some of the implications I see for the church in particular and everyone in general.

Here is the link to Obergefell.  The majority opinion and the dissents total about 100 pages.  I am an attorney, and parts of the decision took some thought to follow the arguments.  You may also find it challenging.  But, if you really want to get past the headlines, it is a good idea to read the full opinion.

What do you think about the decision and what questions do you have?  Please leave a comment.



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