How the Supreme Court Found a Constitutional Right to Same-Sex Marriage

by
June 26, 2015

In a 5-4 decision today authored by Justice Kennedy and joined by the 4 liberal members of the Supreme Court, the Supreme Court found a constitutional right to same-sex marriage in the Fourteenth Amendment.

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383–388; Skinner, 316 U. S., at 541.

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and 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. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

But what does this mean? What exactly does the Fourteenth Amendment protect and how did 5 Supreme Court justices determine that it includes same-sex marriage?

The Fourteenth Amendment was ratified after the Civil War in order to ensure equal protection under the law for all races and groups of people.

There are two clauses that the Court leans on in the Fourteenth Amendment to find the constitutional right to same-sex marriage: the Due Process Clause and the Equal Protection Clause.

Under the Due Process Clause, no State shall “deprive any person of life, liberty, or property, without due process of law.” As Justice Kennedy states, “The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights [… and] certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

Kennedy goes on to wax eloquently about the Supreme Court’s ability to “exercise reasoned justice” in discovering fundamental rights, the nature of injustice in our own time, and “liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Kennedy also leans heavily on precedent involving contraception and abortion in addition to previous cases involving the LGBT community to discuss marriage as one of the most intimate decisions an individual can make, even “shap[ing] an individual’s destiny.”

Under the Equal Protection Clause, the Supreme Court asks whether similarly situated people are treated similarly. If they are not, the government must show their means of treating people differently are sufficiently related to the goals it is pursuing.

For example, the government cannot treat black and white people differently for any reason because there is no justification for this unequal treatment. However, it can treat children differently from adults as long as the extent of the different treatment is related to legitimate governmental goals, e.g. protecting the innocence of children as they are developing in maturity.

The Supreme Court today claims to find a constitutional right to same-sex marriage, anchoring its arguments in both the Due Process Clause AND the Equal Protection Clause. In doing so, the Court stretches the boundaries of prior judicial principles.

The majority opinion ultimately finds that same-sex marriage is a fundamental right on “four principles and traditions”: (1) right to personal choice in marriage is “inherent in the concept of individual autonomy”; (2) “two-person union unlike any other in its importance to the committed individuals”; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order.

Justice Kennedy’s majority opinion is an exercise in emotional appeal bordering on sophistry. Like he has done in iconic opinions previously such as Planned Parenthood v. Casey, Justice Kennedy’s majority opinion here is heavy on soaring rhetoric that pulls on the heartstrings while failing to be grounded in any comprehendible constitutional jurisprudence.

Justice Kennedy writes:

“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. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co- extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.”

Chief Justice Roberts’ dissent best explains the confusion of this passage, writing, “Its discussion is, quite frankly, difficult to follow. […] Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases.”

The Chief Justice’s dissent contains numerous passages discussing why the Constitution contains no fundamental right to same-sex marriage:

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. […]

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. […]

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” […]

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.

Justice Scalia, in a scathing dissent, criticizes the majority opinion’s lack of legal reasoning and misapplication of the Fourteenth Amendment:

Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. […]

Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman. […]

The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

The majority opinion and the four dissenting opinions fill up over 100 pages. Much of the dissenting opinions criticize the majority opinion’s “claim of power” and unimaginable “conception of the judicial role” in ending the “public debate over same-sex marriage display[ing] American democracy at its best.”

As Andrew Walker has written, the largest effects of this decision will be in the future political and legal battles over religious liberty. But the way the majority found the fundamental right to same-sex marriage serves as a reminder of what has come before and what could happen again in the future.

Just as the Court has dubiously found a right to abortion in the Constitution, they once again found a right to same-sex marriage in that same Constitution despite no mention of any right remotely connected to these topics. As Justice Alito’s dissent points out,

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

It’s an important reminder to all of us that who sits on the Supreme Court is important. Because, if five of them want to find a fundamental right in the Constitution, they will do it, regardless of whether anything in the Constitution is remotely connected to it in the slightest.


Joseph Williams
Joseph Williams is a constitutional lawyer and ERLC Associate Research Fellow.