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Analysis: Fundamental right to marry cannot be denied to same-sex couples

By Joy P. Waltemath, J.D.

Saying the right to marry is a fundamental right inherent in the liberty of the person, a majority of the Supreme Court held that under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same sex “may not be deprived of that right and that liberty.” Same-sex couples may exercise the fundamental right to marry, and there is no lawful basis for states to refuse to recognize a lawful same-sex marriage performed in another state based on its same-sex character. Ruling 5-4, the Court invalidated the state laws challenged by the petitioners here—in Michigan, Kentucky, Ohio, and Tennessee—to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. The majority found no reason to wait for “further legislation, litigation, and debate.” Each of the dissenting Justices filed a separate opinion: Chief Justice Roberts, and Justices Scalia, Thomas, and Alito (Obergefell v. Hodges, June 26, 2015, Kennedy, A.).

Fundamental rights. The majority opinion began by tracing the history of marriage and historical treatment of homosexuality in society, including the High Court’s consideration of the legal status of homosexuals, as well as how courts overall have looked at the institution of marriage. Looking to the Due Process Clause of the Fourteenth Amendment, the Court pointed out that it protects not just what is enumerated in the Bill of Rights but also “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

Right to marry. The right to marry is protected by the Constitution, reiterated the Court, citing Loving v. Virginia, its 1967 invalidation of bans on interracial unions; Zablocki v. Redhail, its 1978 opinion holding the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying; and Turner v. Safley, a 1987 case finding that the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. The Court then identified “four principles and traditions” to demonstrate that the reasons marriage is “fundamental” under the Constitution apply with equal force to same-sex couples.

Personal choice in marriage. The right to personal choice regarding marriage is inherent in the concept of individual autonomy, said the Court. Comparing choice in marriage to choices concerning contraception, family relationships, procreation, and childrearing—all of which are protected by the Constitution—decisions concerning marriage are among the most intimate that an individual can make.

Right to intimate association. The right to marry is fundamental, continued the majority, because it supports a two-person union unlike any other in its importance to the committed individuals. As the Court held in Lawrence v. Texas, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. And, while Lawrence confirmed a “dimension of freedom” that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there, said the Court: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”

Childrearing and procreation. A third basis for protecting the right to marry is that “it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” Excluding same-sex couples from marriage conflicts with a central premise of the right to marry, reasoned the Court, because without the “recognition, stability, and predictability marriage offers,” their children suffer the stigma of knowing “their families are somehow lesser.” The majority was quick to note that the right to marry is no less meaningful for those who do not or cannot have children. “An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State.”

A community building block. Fourth, the Court pointed out that “marriage is a keystone of our social order” and “a building block of our national community.” Society offers both symbolic recognition and material benefits to married couples. In fact, marriage is the “basis for an expanding list of governmental rights, benefits, and responsibilities,” noted the Court, including taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. Plus, “[v]alid marriage under state law is also a significant status for over a thousand provisions of federal law.”

Right to marry is the issue. The majority commented on the respondents’ argument that Supreme Court jurisprudence calls for a “‘careful description’” of fundamental rights and that here, the petitioners did not seek to exercise the right to marry, but rather a new and nonexistent “right to same-sex marriage.” The Court found that argument “inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage, and intimacy.” The majority reasoned that Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Instead, the question was whether there was a sufficient justification for excluding the relevant class from the fundamental right.

Fourteenth Amendment. The Court explicitly found that the “right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” Each concept—liberty and equal protection—leads to a stronger understanding of the other.

Accordingly, the Court said that the challenged laws burden the liberty of same-sex couples and abridge central precepts of equality. They deny same-sex couples all the benefits afforded to opposite-sex couples and bar those couples from exercising a fundamental right. This denial to same-sex couples of the right to marry works a grave and continuing harm, continued the Court, finding that the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

Why not wait? Although the Court acknowledged the inclination to proceed with caution—to await “further legislation, litigation, and debate,” it claimed there has been far more deliberation than this argument acknowledges, referencing a five-plus page appendix of case law and legislation on the subject. The Constitution contemplates that democracy is the appropriate process for change, agreed the Court, so long as that process does not abridge fundamental rights. But when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking, it concluded.

Citing Bowers v. Hardwick, which upheld a law “criminalizing same-sex intimacy” even though “the facts and principles necessary to a correct holding were known to the Bowers Court,” the majority found that a ruling against same-sex couples would have the same effect—and, like Bowers, would be unjustified under the Fourteenth Amendment.

Recognition of other states’ marriages. The Court also addressed whether the Constitution requires states to recognize same-sex marriages validly performed out of state. As counsel for the respondents acknowledged at argument, if states are constitutionally required to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. Thus, there is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.

Religious freedom. The majority did emphasized that religions and their adherents “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment guarantees as much. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”

Skirting strict scrutiny. Nonnie J. Shivers, Shareholder in Ogletree Deakins’ Phoenix office, noted that “although the Supreme Court held that lesbians and gays have a fundamental right to marry and went much further than it previously did in Windsor, the Court avoided applying heightened or strict scrutiny (or identifying any particular level of scrutiny at all). This is not surprising in the least, but certainly gave rise to the dissenting Justices comments about the opinion’s “profundities” and “incoherence.” The Court instead found that due process and equal protection grounds, as well as historical and cultural underpinnings related to dignity and children, were sufficient to validate (or some might argue confer) the fundamental right to marry to same-sex couples.”

Impact on employment discrimination laws. Commenting further that this “more generalized approach” by the Court may simply have been necessary to reach a majority, Shivers pointed out that “it may also have been in recognition of the fact sexual orientation is not a suspect or protected class under Title VII, although federal contractors and their employees have enhanced duties and protections under amended Executive Order 11246, which prohibits discrimination based on sexual orientation and gender identity. Obergefell could possibly result in future legal challenges based on equal protection grounds, so today’s decision may be used in future litigation and/or as an impetus to seek to pass ENDA [the Employment Non-Discrimination Act] or other protections.”

Sean R. Gallagher, Shareholder in Polsinelli’s Denver office, cautioned that employers not read too much into the decision, which, he noted, “is the culmination of an historic about-face in public opinion over the last decade, and follows a tidal wave of lower court decisions recognizing same-sex marriage. We should not expect that the Court is suddenly going to veer to the left and embark upon an expansion of civil and employment rights. The basic framework of Title VII and the ADA will remain unchanged.”

Implications for employers. As for what employers might anticipate from the decision, however, Gallagher went on to stress that in addition to touching all quarters of American life, the “decision could have wide-ranging implications for employers. One’s marital status is a trigger for all types of workplace benefits, and could affect retirement and health care plans, social security benefits, tax status, adoption, citizenship, and health care decisions.” Gallagher and his colleagues at Polsinelli had filed a friend of the Court brief on behalf of more than 300 prominent Republicans who support same-sex marriage.

Michael Droke, Partner with Dorsey and Whitney in its Seattle and Palo Alto offices, stressed that the case largely does not affect many of the federal rights employees already enjoy, because those rights were protected under earlier rulings. However, “state law rights that apply to married couples also will now apply to same-sex marriages, regardless of the laws in that particular state. These include those laws covering benefits, leaves of absence, property rights, informational rights, and the like,” he said. The ruling also frees employers to “have national policies on leaves of absence and similar issues without being required to justify the reasoning for these national policies with local management,” Droke noted.

Practical advice. Ogletree’s Nonnie Shivers recommended that “employers should identify and review their policies and practices implicating ‘spouses’ given the expansion of marriage, including any gender-specific policy identifying a spouse as limited to a man and a woman (or husband and wife), FMLA and leave policies (since all valid marriages regardless of place of celebration or residence are now valid), bereavement, health, and fringe benefits.” And she added an insightful caution: “Employers should also beware that despite the Court’s clear decision, same-sex marriage remains a hot-button issue for many employees; it may trickle into workplace discussions, and employers should be prepared as ever to deal with such issues.”

Dissent: “Just who do we think we are?” Chief Justice Roberts’ dissenting opinion was joined by Justices Scalia and Thomas. Although Justices Scalia, Thomas, and Alito each wrote separately as well, the Chief Justice did not join in any of their dissents. Roberts’ powerful dissent acknowledged that the policy arguments for extending marriage to same-sex couples may be compelling, but “the legal arguments for requiring such an extension are not.” His essential point: “The fundamental right to marry does not include a right to make a State change its definition of marriage.” He decried the majority’s decision that he said “closed the debate and enacted [its] own vision of marriage as a matter of constitutional law. Stealing 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.”

“Just who do we think we are?” asked the Chief Justice. He stressed his opinion was “not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives,” or with the Court. And he came down hard on the side of the people.

Addressing the fundamental rights discussion, Roberts pointed out that the “right to marry” cases on which the majority relied stand for “the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here,” he reasoned.

As for the equal protection argument, Roberts said the majority opinion lacked “anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.”

The Chief Justice also focused on just what laws the petitioners challenged. Although they discuss the ancillary legal benefits that accompany marriage, like hospital visitation rights and recognition of spousal status on official documents, the cases here “target the laws defining marriage generally rather than those allocating benefits specifically,” said Roberts, noting that the equal protection analysis might be different if the Court had been confronted with a more focused challenge to the denial of certain tangible benefits.

Roberts also noted his concern about accommodating those whose religious beliefs and practices cause them to oppose same-sex marriage “as a tenet of faith.” He pointed out that “respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations,” he concluded.