Same-Sex Marriage Now the Law in Every State

In an historic decision last Friday, the U.S. Supreme Court held, in Obergefell v. Hodges, that states may no longer define marriage as exclusively between a man and a woman but must extend its definition to include unions between individuals of the same sex.

Justice Kennedy, writing for a majority that included Justices Ginsburg, Breyer, Sotomayor and Kagan, held that the Due Process Clause creates a fundamental right to marry, a right rooted in a more general right to individual autonomy.  Pulling heavily on the famous case of Loving v. Virginia, which struck down bans on interracial marriage, Justice Kennedy wrote that no state interest could justify depriving same-sex individuals the right to marry based on their sexual orientation, and that this different treatment also violates the Equal Protection Clause.  As he had done in earlier opinions relating to the rights of gay and lesbian individuals, Justice Kennedy found that to deny the right to marry in this circumstance sends a signal of animus and inferiority to homosexuals, one the Constitution cannot permit.

Chief Justice Roberts and Justices Scalia, Thomas and Alito strongly dissented.  The dissents argued that the matter of defining marriage should be left to the states and the democratic process and that traditional marriage, based on procreation, was a sufficient state interest to deny marriage to homosexuals.  The majority responded by noting that fundamental rights need not wait for the democratic process to catch up with the commands of the Constitution, and that the argument for traditional marriage is erroneous given that many civilizations defined marriage to include polygamy and continue to do so today.  As for procreation, the majority noted that people who cannot or choose not to have children marry everyday and no law precludes them from doing so.

The impact of the decision is immediate in two key respects:  first, all states must issue marriage licenses to same-sex couples; and second, no state may deny any benefit of marriage to a lawfully married same-sex couple – including the right to dissolve the marriage.

The plaintiff in the landmark case declared movingly that we now no longer have traditional marriage and same-sex marriage, but simply marriage.  The equality of marriage under the Constitution means that all unions deserve the same dignity and respect and need no qualifier like heterosexual or homosexual.

If you have questions about same sex marriage or divorce, contact us – we can help.