Same-Sex Marriage Law: Liberty and Equal Protection

Over the past few decades, the institution of marriage in the United States has undergone considerable transformations. Undoubtedly, one of the most fundamental changes followed the U.S. Supreme Court decision to repeal all states’ bans on same-sex marriage and to legalize it on the whole territory of the United States. This decision answered two questions presented by the petitioners: 14 same-sex couples and two men whose partners are deceased, all residents of the states that had bans on same-sex marriages and other related restrictions. The first question is whether the State is obliged to license a marriage between two persons of the same sex. The second question is if it has to recognize such a marriage licensed in other states. The present essay aims to critically discuss the U.S. Supreme Court decision to legalize same-sex marriages. In the beginning, it examines the arguments of the plaintiffs, which were based on two clauses of the Fourteenth Amendment, and explains the ruling of the Court. Then it goes on to examine what societal changes might have influenced the Court’s decision. Furthermore, the paper analyses the arguments produced by the dissenting justices and provides a critical perspective on the issue.

The plaintiffs argue that the Due Process Clause of the Fourteenth Amendment protects their right to marry, as this right is inherent in the concept of liberty enshrined in the Fourteenth Amendment. Although there is no exhaustive list of liberties protected by the Clause, its protection applies to most of the rights contained in the Bill of Rights. Moreover, “these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs” (Eisenstadt v. Baird, 1972). In light of this, the Court has well-established jurisprudence of treating marriage as the right protected by the Constitution. For instance, in Loving v. Virginia (1967), the Court repealed bans on interracial marriages, affirming that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Although it is undeniable that the Court’s previous jurisprudence on the right to marry was focused on gender-differentiated couples, the plaintiffs argued that the same rationale should equally apply to same-sex couples.

This argument rests upon four basic principles that were used to defend the position of the plaintiffs. First of all, the decision concerning marriage is one of the most fundamental that a person can make and brings about profound changes to this person’s destiny. It is thus enshrined in the concept of individual autonomy. Secondly, this choice protects intimate association and commitment between two individuals in a way that is more profound than any other decision would make possible. The third principle draws upon the protection of families and children since the prohibition to marry impedes the sense of stability of the children growing upon in a family with same-sex parents. Finally, the argument draws upon the fact that marriage lies at the heart of the social order, and it is for this reason that States provide support and various benefits to married couples. Yet, this support and benefits are denied to same-sex couples, which, however, seek not to destroy the traditional institution of marriage, but to enjoy the privileges granted to other families.

The argument of the plaintiffs goes on to draw upon the Equal Protection Clause of the Fourteenth Amendment that is closely linked to the Due Process Clause since fundamental liberties should be secured by equal protection. The interrelation between these two clauses has long been established by the Court’s jurisprudence, the most prominent cases being Loving v. Virginia (1967) and Lawrence v. Texas (2003). In the latter case, the Court has already acknowledged this interconnection in the context of LGBT rights. Thus, in this case, it is argued that not only do the bans infringe upon the plaintiffs’ liberty, they also hinder the proper application of the principle of equality.

The Supreme Court ruled that under the Due Process and the Equal Protection Clauses the same-sex couples have the right to conclude marriage and to have their marriage concluded in other States legally recognized. Central to this decision is the opinion of the Court that, although this right was not directly addressed in the Constitution, injustice tends to become more apparent depending on the times. Accordingly, “when new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed” (Obergefell v. Hodges, 2015). Moreover, the Court recognizes that this claim can be addressed through the democratic process that exists at the state level. Although recognizing the importance of the democratic process, the Court affirms that individuals whose rights are harmed may use their right to constitutional protection. Thus, even though it could have been possible to wait until the issue is resolved through such processes, the role of the Constitution is to resolve the legal issue in question.

It is difficult to underestimate the role of the Court’s jurisprudence that has laid the foundation for this ruling. In Romer v. Evans (1996), the Supreme Court found that State provisions prohibiting anti-discrimination laws concerning homosexual persons were unconstitutional. After this first positive case addressing LGBT rights, the Court invoked the right to privacy to repeal the prohibition of sexual acts between consenting adults of the same sex (Lawrence v. Texas, 2003). Finally, in U.S. v. Windsor (2013), the Court ruled that the federal government could not justify its refusal to grant marital deduction benefits to married couples based on the fact that the partners are of the same sex. Therefore, it is evident that the Court has developed substantial jurisprudence related to the rights of same-sex couples. However, until the case of Obergefell v. Hodges was brought to the Supreme Court, the right to marry was still not universally recognized.

It is important to examine the wider societal context that prepared the ground for this decision. In 1986, in Bowers v. Hardwick, the Court upheld the constitutionality of the criminalization of certain homosexual acts. Since then, society has undergone significant transformations regarding family and other aspects of private life. Homosexual couples have begun to live more openly, their visibility contributing to a change of public perceptions. There have been numerous public campaigns and debates, as well as scientific research that have contributed to this change of societal attitude. Moreover, progress was evident in other spheres of society, such as in the matter of women’s rights, and so on. Consequently, the change of societal attitudes made possible further changes at the constitutional level.

However, given the persistent disagreements regarding same-sex unions, the Court ruling was not taken unanimously. One of the arguments that were produced by the dissenting justices is that the role of the Court consists of merely interpreting the already existing law. Resolving the policy, and not the legal question of whether same-sex union constitutes marriage, the judges “violate a principle even more fundamental than no taxation without representation: no social transformation without representation” (Obergefell v. Hodges, 2015). Moreover, according to Justice Thomas, liberty has traditionally been understood as freedom from government infringement, not entitlement to state benefits. Subsequently, as long as the government does not intervene in the couple’s family life, it does not violate their liberty. Finally, the dissenting justices pointed out that the legalization of same-sex marriages is a threat to religious freedoms. The conflict between the two is inevitable as individuals and institutions will be confronted with the claims to endorse same-sex marriages.

The argument that this question should have been resolved using the democratic process has its strong points. Nonetheless, it is also evident that justice should not be a matter of decades for those who seek it. The cases of plaintiffs demonstrate that the outcome of waiting for too long might be that the person might never obtain justice. Moreover, as regards the conflict between religious freedoms and marriage equality, the dissenting justices do not specify which aspect of religious freedoms can be violated by this ruling. In general, their arguments tend to draw upon traditional attitudes towards societal norms, which should not replace legal analysis.

In conclusion, the legalization of same-sex marriage in the U.S. has generated public debate and divided public opinion. While the arguments for the legalization draw upon the Due Process and the Equal Protection Clauses under the Constitution, the opponents maintain that this question had to be resolved using the democratic process. At the same time, the parties do not agree on the question of whether this decision infringes upon religious rights. This decision was made possible by profound and irreversible societal changes that occurred over the past decades and influenced the Court’s interpretation of the constitutional provisions.

References

Bowers v. Hardwick, 478 U.S. 186 (1986).

Eisenstadt v. Baird, 405 U.S. 438 (1972).

Lawrence v. Texas, 539 U.S. 558 (2003).

Loving v. Virginia, 388 U.S. 1 (1967).

Obergefell v. Hodges, 576 U.S.__ (2015).

Romer v. Evans, 517 U.S. 620 (1996).

U.S. v. Windsor, 570 U.S.__ (2013).