NYU Communications Obergefell v Hodges Case Analysis Case Brief Paper

case brief

Read the assigned Court decision, Obergefell v. Hodges.

Title and Citation: List the name of the case, the citation listed in text, and the year.

Background:You should provide a BRIEF contextual backstory to the case at hand. See my presentation/powerpoint presentation for an example.

Facts:You should present the relevant facts necessary to understand the “story line” and pertinent to the issue(s) raised. Make sure that you write it in such a way that not only you understand it, but that someone reading it without knowledge of the case can understand the case enough to discuss the issues. This can be difficult as everything seems important (it is not). You must paraphrase.

Issue(s):The only relevant issue(s) is/are the one(s) that result in a decision by the Court. Each issue should be ONE line. To be safe, you should (but are not required) to word the issue as, “whether…” (e.g., whether capital punishment is disproportionate to the crime of rape committed by an adult, thereby violating the 8th Amendment cruel and unusual punishment clause).  You can frame the issue as a question if you choose (e.g., Is capital punishment disproportionate to the crime of rape committed by an adult, thereby violating the cruel and unusual punishment clause of the 8th Amendment?) Be sure to number the issues if there are more than one (and make sure the holding/s address each issue, respectively). Be specific in the issue.

Holding:The holding should be one word to one sentence and directly address the issue(s) you identified. The holding should reflect the majority opinion. Do not identify dissents or multiple opinions (sometimes justices agree on the outcome, but for multiple reasons, in which case more than one justice in the majority may write an opinion). Note: This is the DECISION.

Opinion/Reasoning:This may be the most difficult part of writing a case brief, as the reasoning in the court’s opinion will often go “back and forth” and refer to other cases. You should distill the reasoning down to key points that explain the court’s decision. You should summarize the key justification points in your own words. You can quote the Court briefly if you cannot find a better way to paraphrase the material—you must use quotations, and your use of quotations should be minimal (and appropriate). You can either number the key points (again, you can have more than one sentence for each line of reasoning, if it makes theoretical sense to do that), or you can write up the justification in a paragraph (definitely not more than two paragraphs and it only should exceed one paragraph if the case is complex).

Your Opinion:In this section, you are to critically analyze the opinion of the court and state your own conclusion as to how you would rule on the issue(s) raised in the case. You should state your own reasoning to support your conclusion. You are free to agree or disagree with the court’s opinion and/or dissent, and you should cite points that you found persuasive or non-persuasive/errant in those opinions. This section should be about a paragraph long and in your own words.

Questions: If you have any questions about the case, list them here. If you think of other issues the Court should have raised (or dealt with), but didn’t, identify them here. There are times the Court will take on a case, but only address a small part of it, which can have large ramifications for law, policy, the justice system, and other social and political issues.  This section of the brief is optional.

(Slip Opinion)
OCTOBER TERM, 2014
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 14–556.
Argued April 28, 2015—Decided June 26, 2015*
Michigan, Kentucky, Ohio, and Tennessee define marriage as a union
between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits
in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed
in another State given full recognition. Each District Court ruled in
petitioners’ favor, but the Sixth Circuit consolidated the cases and
reversed.
Held: The Fourteenth 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. Pp. 3–28.
(a) Before turning to the governing principles and precedents, it is
appropriate to note the history of the subject now before the Court.
Pp. 3–10.
(1) The history of marriage as a union between two persons of
the opposite sex marks the beginning of these cases. To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect—and
need—for its privileges and responsibilities, as illustrated by the pe——————
* Together with No. 14–562, Tanco et al. v. Haslam, Governor of Tennessee, et al., No. 14–571, DeBoer et al. v. Snyder, Governor of Michigan,
et al., and No. 14–574, Bourke et al. v. Beshear, Governor of Kentucky,
also on certiorari to the same court.
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OBERGEFELL v. HODGES
Syllabus
titioners’ own experiences. Pp. 3–6.
(2) The history of marriage is one of both continuity and change.
Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations
in the structure of marriage, affecting aspects of marriage once
viewed as essential. These new insights have strengthened, not
weakened, the institution. Changed understandings of marriage are
characteristic of a Nation where new dimensions of freedom become
apparent to new generations.
This dynamic can be seen in the Nation’s experience with gay and
lesbian rights. Well into the 20th century, many States condemned
same-sex intimacy as immoral, and homosexuality was treated as an
illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive
public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon
reached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in
Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia law that
criminalized certain homosexual acts, concluding laws making samesex intimacy a crime “demea[n] the lives of homosexual persons.”
Lawrence v. Texas, 539 U. S. 558, 575. In 2012, the federal Defense
of Marriage Act was also struck down. United States v. Windsor, 570
U. S. ___. Numerous same-sex marriage cases reaching the federal
courts and state supreme courts have added to the dialogue. Pp. 6–
10.
(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 10–27.
(1) The fundamental liberties protected by the Fourteenth
Amendment’s Due Process Clause extend to certain personal choices
central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v.
Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479,
484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them
its respect. History and tradition guide and discipline the inquiry
but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these tenets, the Court has long held the right to marry is
protected by the Constitution. For example, Loving v. Virginia, 388
U. S. 1, 12, invalidated bans on interracial unions, and Turner v.
Safley, 482 U. S. 78, 95, held that prisoners could not be denied the
right to marry. To be sure, these cases presumed a relationship in-
Cite as: 576 U. S. ____ (2015)
3
Syllabus
volving opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810, a
one-line summary decision issued in 1972, holding that the exclusion
of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed
broader principles. See, e.g., Lawrence, supra, at 574. In assessing
whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry
has been long protected. See, e.g., Eisenstadt, supra, at 453–454.
This analysis compels the conclusion that same-sex couples may exercise the right to marry. Pp. 10–12.
(2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with
equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding
connection between marriage and liberty is why Loving invalidated
interracial marriage bans under the Due Process Clause. See 388
U. S., at 12. Decisions about marriage are among the most intimate
that an individual can make. See Lawrence, supra, at 574. This is
true for all persons, whatever their sexual orientation.
A second principle in this Court’s jurisprudence is that the right to
marry is fundamental because it supports a two-person union unlike
any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v.
Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right
as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a
criminal offense. See Lawrence, supra, at 567.
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. See, e.g., Pierce v. Society of
Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing
their families are somehow lesser. They also suffer the significant
material costs of being raised by unmarried parents, relegated to a
more difficult and uncertain family life. The marriage laws at issue
thus harm and humiliate the children of same-sex couples. See
Windsor, supra, at ___. This does not mean that the right to marry is
less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the
right to marry cannot be conditioned on the capacity or commitment
to procreate.
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OBERGEFELL v. HODGES
Syllabus
Finally, this Court’s cases and the Nation’s traditions make clear
that marriage is a keystone of the Nation’s social order. See
Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the
fundamental character of marriage by placing it at the center of
many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle,
yet same-sex couples are denied the constellation of benefits that the
States have linked to marriage and are consigned to an instability
many opposite-sex couples would find intolerable. It is demeaning to
lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.
The limitation of marriage to opposite-sex couples may long have
seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. Pp. 12–18.
(3) The right of same-sex couples to marry is also derived from
the Fourteenth Amendment’s guarantee of equal protection. The Due
Process Clause and the Equal Protection Clause are connected in a
profound way. Rights implicit in liberty and rights secured by equal
protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of
the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause;
and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments from
marrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has
invoked equal protection principles to invalidate laws imposing sexbased inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450
U. S. 455, 460–461, and confirmed the relation between liberty and
equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120–121.
The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays
and lesbians. See Lawrence, 539 U. S., at 575. This dynamic also
applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality.
The marriage laws at issue are in essence unequal: Same-sex couples
are denied benefits afforded opposite-sex couples and are barred from
exercising a fundamental right. Especially against a long history of
disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 18–22.
(4) The right to marry is a fundamental right inherent in the
liberty of the person, and under the Due Process and Equal Protec-
Cite as: 576 U. S. ____ (2015)
5
Syllabus
tion 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. Baker v. Nelson is
overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from
civil marriage on the same terms and conditions as opposite-sex couples. Pp. 22–23.
(5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and
grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are
harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays
and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim,
and the effects of these injuries no doubt lingered long after Bowers
was overruled. A ruling against same-sex couples would have the
same effect and would be unjustified under the Fourteenth Amendment. The petitioners’ stories show the urgency of the issue they
present to the Court, which has a duty to address these claims and
answer these questions. Respondents’ argument that allowing samesex couples to wed will harm marriage as an institution rests on a
counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that
religions, those who adhere to religious doctrines, and others have
protection as they seek to teach the principles that are so fulfilling
and so central to their lives and faiths. Pp. 23–27.
(c) The Fourteenth Amendment requires States to recognize samesex marriages validly performed out of State. Since same-sex couples
may now exercise the fundamental right to marry in all States, 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. Pp. 27–28.
772 F. 3d 388, reversed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA,
J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J.,
filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a
dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
Cite as: 576 U. S. ____ (2015)
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 14–556, 14-562, 14-571 and 14–574
_________________
JAMES OBERGEFELL, ET AL., PETITIONERS
14–556
v.
RICHARD HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, ET AL.;
14–562
VALERIA TANCO, ET AL., PETITIONERS
v.
BILL HASLAM, GOVERNOR OF
TENNESSEE, ET AL.;
APRIL DEBOER, ET AL., PETITIONERS
14–571
v.
RICK SNYDER, GOVERNOR OF MICHIGAN,
ET AL.; AND
GREGORY BOURKE, ET AL., PETITIONERS
14–574
v.
STEVE BESHEAR, GOVERNOR OF
KENTUCKY
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]
JUSTICE KENNEDY delivered the opinion of the Court.
The Constitution promises liberty to all within its reach,
a liberty that includes certain specific rights that allow
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OBERGEFELL v. HODGES
Opinion of the Court
persons, within a lawful realm, to define and express their
identity. The petitioners in these cases seek to find that
liberty by marrying someone of the same sex and having
their marriages deemed lawful on the same terms and
conditions as marriages between persons of the opposite
sex.
I
These cases come from Michigan, Kentucky, Ohio, and
Tennessee, States that define marriage as a union between one man and one woman. See, e.g., Mich. Const.,
Art. I, §25; Ky. Const. §233A; Ohio Rev. Code Ann.
§3101.01 (Lexis 2008); Tenn. Const., Art. XI, §18. The
petitioners are 14 same-sex couples and two men whose
same-sex partners are deceased. The respondents are
state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the
Fourteenth Amendment by denying them the right to
marry or to have their marriages, lawfully performed in
another State, given full recognition.
Petitioners filed these suits in United States District
Courts in their home States. Each District Court ruled in
their favor. Citations to those cases are in Appendix A,
infra. The respondents appealed the decisions against
them to the United States Court of Appeals for the Sixth
Circuit. It consolidated the cases and reversed the judgments of the District Courts. DeBoer v. Snyder, 772 F. 3d
388 (2014). The Court of Appeals held that a State has no
constitutional obligation to license same-sex marriages or
to recognize same-sex marriages performed out of State.
The petitioners sought certiorari. This Court granted
review, limited to two questions. 574 U. S. ___ (2015).
The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a
State to license a marriage between two people of the
same sex. The second, presented by the cases from Ohio,
Cite as: 576 U. S. ____ (2015)
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Opinion of the Court
Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a samesex marriage licensed and performed in a State which does
grant that right.
II
Before addressing the principles and precedents that
govern these cases, it is appropriate to note the history of
the subject now before the Court.
A
From their beginning to their most recent page, the
annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a
woman always has promised nobility and dignity to all
persons, without regard to their station in life. Marriage
is sacred to those who live by their religions and offers
unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that
could not be found alone, for a marriage becomes greater
than just the two persons. Rising from the most basic
human needs, marriage is essential to our most profound
hopes and aspirations.
The centrality of marriage to the human condition
makes it unsurprising that the institution has existed for
millennia and across civilizations. Since the dawn of
history, marriage has transformed strangers into relatives, binding families and societies together. Confucius
taught that marriage lies at the foundation of government.
2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J.
Legge transl. 1967). This wisdom was echoed centuries
later and half a world away by Cicero, who wrote, “The
first bond of society is marriage; next, children; and then
the family.” See De Officiis 57 (W. Miller transl. 1913).
There are untold references to the beauty of marriage in
religious and philosophical texts spanning time, cultures,
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OBERGEFELL v. HODGES
Opinion of the Court
and faiths, as well as in art and literature in all their
forms. It is fair and necessary to say these references
were based on the understanding that marriage is a union
between two persons of the opposite sex.
That history is the beginning of these cases. The respondents say it should be the end as well. To them, it
would demean a timeless institution if the concept and
lawful status of marriage were extended to two persons of
the same sex. Marriage, in their view, is by its nature a
gender-differentiated union of man and woman. This view
long has been held—and continues to be held—in good
faith by reasonable and sincere people here and throughout the world.
The petitioners acknowledge this history but contend
that these cases cannot end there. Were their intent to
demean the revered idea and reality of marriage, the
petitioners’ claims would be of a different order. But that
is neither their purpose nor their submission. To the
contrary, it is the enduring importance of marriage that
underlies the petitioners’ contentions. This, they say, is
their whole point. Far from seeking to devalue marriage,
the petitioners seek it for themselves because of their
respect—and need—for its privileges and responsibilities.
And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
Recounting the circumstances of three of these cases
illustrates the urgency of the petitioners’ cause from their
perspective. Petitioner James Obergefell, a plaintiff in the
Ohio case, met John Arthur over two decades ago. They
fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was
diagnosed with amyotrophic lateral sclerosis, or ALS.
This debilitating disease is progressive, with no known
cure. Two years ago, Obergefell and Arthur decided to
commit to one another, resolving to marry before Arthur
died. To fulfill their mutual promise, they traveled from
Cite as: 576 U. S. ____ (2015)
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Opinion of the Court
Ohio to Maryland, where same-sex marriage was legal. It
was difficult for Arthur to move, and so the couple were
wed inside a medical transport plane as it remained on the
tarmac in Baltimore. Three months later, Arthur died.
Ohio law does not permit Obergefell to be listed as the
surviving spouse on Arthur’s death certificate. By statute,
they must remain strangers even in death, a stateimposed separation Obergefell deems “hurtful for the rest
of time.” App. in No. 14–556 etc., p. 38. He brought suit
to be shown as the surviving spouse on Arthur’s death
certificate.
April DeBoer and Jayne Rowse are co-plaintiffs in the
case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They
both work as nurses, DeBoer in a neonatal unit and Rowse
in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year,
they welcomed another son into their family. The new
baby, born prematurely and abandoned by his biological
mother, required around-the-clock care. The next year, a
baby girl with special needs joined their family. Michigan,
however, permits only opposite-sex married couples or
single individuals to adopt, so each child can have only one
woman as his or her legal parent. If an emergency were to
arise, schools and hospitals may treat the three children
as if they had only one parent. And, were tragedy to befall
either DeBoer or Rowse, the other would have no legal
rights over the children she had not been permitted to
adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.
Army Reserve Sergeant First Class Ijpe DeKoe and his
partner Thomas Kostura, co-plaintiffs in the Tennessee
case, fell in love. In 2011, DeKoe received orders to deploy
to Afghanistan. Before leaving, he and Kostura married
in New York. A week later, DeKoe began his deployment,
which lasted for almost a year. When he returned, the two
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OBERGEFELL v. HODGES
Opinion of the Court
settled in Tennessee, where DeKoe works full-time for the
Army Reserve. Their lawful marriage is stripped from
them whenever they reside in Tennessee, returning and
disappearing as they travel across state lines. DeKoe, who
served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.
The cases now before the Court involve other petitioners
as well, each with their own experiences. Their stories
reveal that they seek not to denigrate marriage but rather
to live their lives, or honor their spouses’ memory, joined
by its bond.
B
The ancient origins of marriage confirm its centrality,
but it has not stood in isolation from developments in law
and society. The history of marriage is one of both continuity and change. That institution—even as confined to
opposite-sex relations—has evolved over time.
For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious,
and financial concerns; but by the time of the Nation’s
founding it was understood to be a voluntary contract
between a man and a woman. See N. Cott, Public Vows: A
History of Marriage and the Nation 9–17 (2000); S.
Coontz, Marriage, A History 15–16 (2005). As the role and
status of women changed, the institution further evolved.
Under the centuries-old doctrine of coverture, a married
man and woman were treated by the State as a single,
male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women
gained legal, political, and property rights, and as society
began to understand that women have their own equal
dignity, the law of coverture was abandoned. See Brief for
Historians of Marriage et al. as Amici Curiae 16–19. These
and other developments in the institution of marriage over
the past centuries were not mere superficial changes.
Cite as: 576 U. S. ____ (2015)
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Opinion of the Court
Rather, they worked deep transformations in its structure,
affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).
These new insights have strengthened, not weakened,
the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new
dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or
protests and then are considered in the political sphere
and the judicial process.
This dynamic can be seen in the Nation’s experiences
with the rights of gays and lesbians. Until the mid-20th
century, same-sex intimacy long had been condemned as
immoral by the state itself in most Western nations, a
belief often embodied in the criminal law. For this reason,
among others, many persons did not deem homosexuals to
have dignity in their own distinct identity. A truthful
declaration by same-sex couples of what was in their
hearts had to remain unspoken. Even when a greater
awareness of the humanity and integrity of homosexual
persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity
was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many
States. Gays and lesbians were prohibited from most
government employment, barred from military service,
excluded under immigration laws, targeted by police, and
burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5–28.
For much of the 20th century, moreover, homosexuality
was treated as an illness. When the American Psychiatric
Association published the first Diagnostic and Statistical
Manual of Mental Disorders in 1952, homosexuality was
classified as a mental disorder, a position adhered to until
1973. See Position Statement on Homosexuality and Civil
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OBERGEFELL v. HODGES
Opinion of the Court
Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in
more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression
of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7–17.
In the late 20th century, following substantial cultural
and political developments, same-sex couples began to
lead more open and public lives and to establish families.
This development was followed by a quite extensive discussion of the issue in both governmental and private
sectors and by a shift in public attitudes toward greater
tolerance. As a result, questions about the rights of gays
and lesbians soon reached the courts, where the issue
could be discussed in the formal discourse of the law.
This Court first gave detailed consideration to the legal
status of homosexuals in Bowers v. Hardwick, 478 U. S.
186 (1986). There it upheld the constitutionality of a
Georgia law deemed to criminalize certain homosexual
acts. Ten years later, in Romer v. Evans, 517 U. S. 620
(1996), the Court invalidated an amendment to Colorado’s
Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons
against discrimination based on sexual orientation. Then,
in 2003, the Court overruled Bowers, holding that laws
making same-sex intimacy a crime “demea[n] the lives of
homosexual persons.” Lawrence v. Texas, 539 U. S. 558,
575.
Against this background, the legal question of same-sex
marriage arose. In 1993, the Hawaii Supreme Court held
Hawaii’s law restricting marriage to opposite-sex couples
constituted a classification on the basis of sex and was
therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44.
Although this decision did not mandate that same-sex
marriage be allowed, some States were concerned by its
implications and reaffirmed in their laws that marriage is
Cite as: 576 U. S. ____ (2015)
9
Opinion of the Court
defined as a union between opposite-sex partners. So too
in 1996, Congress passed the Defense of Marriage Act
(DOMA), 110 Stat. 2419, defining marriage for all federallaw purposes as “only a legal union between one man and
one woman as husband and wife.” 1 U. S. C. §7.
The new and widespread discussion of the subject led
other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State’s
Constitution guaranteed same-sex couples the right to
marry. See Goodridge v. Department of Public Health, 440
Mass. 309, 798 N. E. 2d 941 (2003). After that ruling,
some additional States granted marriage rights to samesex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B,
infra. Two Terms ago, in United States v. Windsor, 570
U. S. ___ (2013), this Court invalidated DOMA to the
extent it barred the Federal Government from treating
same-sex marriages as valid even when they were lawful
in the State where they were licensed. DOMA, the Court
held, impermissibly disparaged those same-sex couples
“who wanted to affirm their commitment to one another
before their children, their family, their friends, and their
community.” Id., at ___ (slip op., at 14).
Numerous cases about same-sex marriage have reached
the United States Courts of Appeals in recent years. In
accordance with the judicial duty to base their decisions on
principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a
substantial body of law considering all sides of these issues. That case law helps to explain and formulate the
underlying principles this Court now must consider. With
the exception of the opinion here under review and one
other, see Citizens for Equal Protection v. Bruning, 455
F. 3d 859, 864–868 (CA8 2006), the Courts of Appeals
have held that excluding same-sex couples from marriage
violates the Constitution. There also have been many
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thoughtful District Court decisions addressing same-sex
marriage—and most of them, too, have concluded samesex couples must be allowed to marry. In addition the
highest courts of many States have contributed to this
ongoing dialogue in decisions interpreting their own State
Constitutions. These state and federal judicial opinions
are cited in Appendix A, infra.
After years of litigation, legislation, referenda, and the
discussions that attended these public acts, the States are
now divided on the issue of same-sex marriage. See Office
of the Atty. Gen. of Maryland, The State of Marriage
Equality in America, State-by-State Supp. (2015).
III
Under the Due Process Clause of the Fourteenth
Amendment, no State shall “deprive any person of life,
liberty, or property, without due process of law.” The
fundamental liberties protected by this Clause include
most of the rights enumerated in the Bill of Rights. See
Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In
addition these liberties extend to certain personal choices
central to individual dignity and autonomy, including
intimate choices that define personal identity and beliefs.
See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972);
Griswold v. Connecticut, 381 U. S. 479, 484–486 (1965).
The identification and protection of fundamental rights
is an enduring part of the judicial duty to interpret the
Constitution. That responsibility, however, “has not been
reduced to any formula.” Poe v. Ullman, 367 U. S. 497,
542 (1961) (Harlan, J., dissenting). Rather, it requires
courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must
accord them its respect. See ibid. That process is guided
by many of the same considerations relevant to analysis of
other constitutional provisions that set forth broad principles rather than specific requirements. History and tradi-
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11
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tion guide and discipline this inquiry but do not set its
outer boundaries. See Lawrence, supra, at 572. That
method respects our history and learns from it without
allowing the past alone to rule the present.
The nature of injustice is that we may not always see it
in our own times. The generations that wrote and ratified
the Bill of Rights and the Fourteenth Amendment did not
presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we
learn its meaning. When new insight reveals discord
between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long
held the right to marry is protected by the Constitution.
In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held
marriage is “one of the vital personal rights essential to
the orderly pursuit of happiness by free men.” The Court
reaffirmed that holding in Zablocki v. Redhail, 434 U. S.
374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on
child support from marrying. The Court again applied
this principle in Turner v. Safley, 482 U. S. 78, 95 (1987),
which held the right to marry was abridged by regulations
limiting the privilege of prison inmates to marry. Over
time and in other contexts, the Court has reiterated that
the right to marry is fundamental under the Due Process
Clause. See, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 116
(1996); Cleveland Bd. of Ed. v. LaFleur, 414 U. S. 632,
639–640 (1974); Griswold, supra, at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942); Meyer
v. Nebraska, 262 U. S. 390, 399 (1923).
It cannot be denied that this Court’s cases describing
the right to marry presumed a relationship involving
opposite-sex partners. The Court, like many institutions,
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has made assumptions defined by the world and time of
which it is a part. This was evident in Baker v. Nelson,
409 U. S. 810, a one-line summary decision issued in 1972,
holding the exclusion of same-sex couples from marriage
did not present a substantial federal question.
Still, there are other, more instructive precedents. This
Court’s cases have expressed constitutional principles of
broader reach. In defining the right to marry these cases
have identified essential attributes of that right based in
history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g., Lawrence, 539 U. S.,
at 574; Turner, supra, at 95; Zablocki, supra, at 384;
Loving, supra, at 12; Griswold, supra, at 486. And in
assessing whether the force and rationale of its cases
apply to same-sex couples, the Court must respect the
basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454; Poe, supra, at 542–553 (Harlan, J., dissenting).
This analysis compels the conclusion that same-sex
couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the
reasons marriage is fundamental under the Constitution
apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that
the right to personal choice regarding marriage is inherent
in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process
Clause. See 388 U. S., at 12; see also Zablocki, supra, at
384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like 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. See Lawrence, supra, at 574. Indeed, the Court has noted it would
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13
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be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to
the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386.
Choices about marriage shape an individual’s destiny.
As the Supreme Judicial Court of Massachusetts has
explained, because “it fulfils yearnings for security, safe
haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the
decision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge, 440 Mass., at
322, 798 N. E. 2d, at 955.
The nature of marriage is that, through its enduring
bond, two persons together can find other freedoms, such
as expression, intimacy, and spirituality. This is true for
all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___– ___ (slip op., at 22–23). There is
dignity in the bond between two men or two women who
seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to
marry, or not marry, a person of another race resides with
the individual and cannot be infringed by the State”).
A second principle in this Court’s jurisprudence is that
the right to marry is fundamental because it supports a
two-person union unlike any other in its importance to the
committed individuals. This point was central to Griswold
v. Connecticut, which held the Constitution protects the
right of married couples to use contraception. 381 U. S., at
485. Suggesting that marriage is a right “older than the
Bill of Rights,” Griswold described marriage this way:
“Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social
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projects. Yet it is an association for as noble a purpose
as any involved in our prior decisions. ” Id., at 486.
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners
could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U. S., at 95–96. The
right to marry thus dignifies couples who “wish to define
themselves by their commitment to each other.” Windsor,
supra, at ___ (slip op., at 14). Marriage responds to the
universal fear that a lonely person might call out only to
find no one there. It offers the hope of companionship and
understanding and assurance that while both still live
there will be someone to care for the other.
As this Court held in Lawrence, same-sex couples have
the same right as opposite-sex couples to enjoy intimate
association. Lawrence invalidated laws that made samesex intimacy a criminal act. And it acknowledged that
“[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one
element in a personal bond that is more enduring.” 539
U. S., at 567. But 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. Outlaw to outcast may be a step
forward, but it does not achieve the full promise of liberty.
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. See Pierce v. Society of Sisters, 268 U. S. 510
(1925); Meyer, 262 U. S., at 399. The Court has recognized
these connections by describing the varied rights as a
unified whole: “[T]he right to ‘marry, establish a home and
bring up children’ is a central part of the liberty protected
by the Due Process Clause.” Zablocki, 434 U. S., at 384
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(quoting Meyer, supra, at 399). Under the laws of the
several States, some of marriage’s protections for children
and families are material. But marriage also confers more
profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their
own family and its concord with other families in their
community and in their daily lives.” Windsor, supra, at
___ (slip op., at 23). Marriage also affords the permanency
and stability important to children’s best interests. See
Brief for Scholars of the Constitutional Rights of Children
as Amici Curiae 22–27.
As all parties agree, many same-sex couples provide
loving and nurturing homes to their children, whether
biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief
for Gary J. Gates as Amicus Curiae 4. Most States have
allowed gays and lesbians to adopt, either as individuals
or as couples, and many adopted and foster children have
same-sex parents, see id., at 5. This provides powerful
confirmation from the law itself that gays and lesbians can
create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage
offers, their children suffer the stigma of knowing their
families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents,
relegated through no fault of their own to a more difficult
and uncertain family life. The marriage laws at issue here
thus harm and humiliate the children of same-sex couples.
See Windsor, supra, at ___ (slip op., at 23).
That is not to say the right to marry is 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. In light of
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precedent protecting the right of a married couple not to
procreate, it cannot be said the Court or the States have
conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has
many aspects, of which childbearing is only one.
Fourth and finally, this Court’s cases and the Nation’s
traditions make clear that marriage is a keystone of our
social order. Alexis de Tocqueville recognized this truth
on his travels through the United States almost two centuries ago:
“There is certainly no country in the world where the
tie of marriage is so much respected as in America . . .
[W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries
[that image] with him into public affairs.” 1 Democracy in America 309 (H. Reeve transl., rev. ed. 1990).
In Maynard v. Hill, 125 U. S. 190, 211 (1888), the Court
echoed de Tocqueville, explaining that marriage is “the
foundation of the family and of society, without which
there would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been “ ‘a great
public institution, giving character to our whole civil
polity.’ ” Id., at 213. This idea has been reiterated even as
the institution has evolved in substantial ways over time,
superseding rules related to parental consent, gender, and
race once thought by many to be essential. See generally
N. Cott, Public Vows. Marriage remains a building block
of our national community.
For that reason, just as a couple vows to support each
other, so does society pledge to support the couple, offering
symbolic recognition and material benefits to protect and
nourish the union. Indeed, while the States are in general
free to vary the benefits they confer on all married couples, they have throughout our history made marriage the
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17
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basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status
include: 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. See Brief for United States as Amicus Curiae
6–9; Brief for American Bar Association as Amicus Curiae
8–29. Valid marriage under state law is also a significant
status for over a thousand provisions of federal law. See
Windsor, 570 U. S., at ___ – ___ (slip op., at 15–16). The
States have contributed to the fundamental character of
the marriage right by placing that institution at the center
of so many facets of the legal and social order.
There is no difference between same- and opposite-sex
couples with respect to this principle. Yet by virtue of
their exclusion from that institution, same-sex couples are
denied the constellation of benefits that the States have
linked to marriage. This harm results in more than just
material burdens. Same-sex couples are consigned to an
instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage
all the more precious by the significance it attaches to it,
exclusion from that status has the effect of teaching that
gays and lesbians are unequal in important respects. It
demeans gays and lesbians for the State to lock them out
of a central institution of the Nation’s society. Same-sex
couples, too, may aspire to the transcendent purposes of
marriage and seek fulfillment in its highest meaning.
The limitation of marriage to opposite-sex couples may
long have seemed natural and just, but its inconsistency
with the central meaning of the fundamental right to
marry is now manifest. With that knowledge must come
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the recognition that laws excluding same-sex couples from
the marriage right impose stigma and injury of the kind
prohibited by our basic charter.
Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v.
Glucksberg, 521 U. S. 702, 721 (1997), which called for a
“ ‘careful description’ ” of fundamental rights. They assert
the petitioners do not seek to exercise the right to marry
but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause
must be defined in a most circumscribed manner, with
central reference to specific historical practices. Yet while
that approach may have been appropriate for the asserted
right there involved (physician-assisted suicide), it is
inconsistent with the approach this Court has used in
discussing other fundamental rights, including marriage
and intimacy. 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.”
Rather, each case inquired about the right to marry in its
comprehensive sense, asking if there was a sufficient
justification for excluding the relevant class from the
right. See also Glucksberg, 521 U. S., at 752–773 (Souter,
J., concurring in judgment); id., at 789–792 (BREYER, J.,
concurring in judgments).
That principle applies here. If rights were defined by
who exercised them in the past, then received practices
could serve as their own continued justification and new
groups could not invoke rights once denied. This Court
has rejected that approach, both with respect to the right
to marry and the rights of gays and lesbians. See Loving
388 U. S., at 12; Lawrence, 539 U. S., at 566–567.
The right to marry is fundamental as a matter of history
and tradition, but rights come not from ancient sources
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alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that
remains urgent in our own era. Many who deem same-sex
marriage to be wrong reach that conclusion based on
decent and honorable religious or philosophical premises,
and neither they nor their beliefs are disparaged here.
But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to
put the imprimatur of the State itself on an exclusion that
soon demeans or stigmatizes those whose own liberty is
then denied. Under the Constitution, same-sex couples
seek in marriage the same legal treatment as opposite-sex
couples, and it would disparage their choices and diminish
their personhood to deny them this right.
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 coextensive, 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. See M. L. B., 519 U. S., at 120–
121; id., at 128–129 (KENNEDY, J., concurring in judgment); Bearden v. Georgia, 461 U. S. 660, 665 (1983). This
interrelation of the two principles furthers our understanding of what freedom is and must become.
The Court’s cases touching upon the right to marry
reflect this dynamic. In Loving the Court invalidated a
prohibition on interracial marriage under both the Equal
Protection Clause and the Due Process Clause. The Court
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Opinion of the Court
first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: “There
can be no doubt that restricting the freedom to marry
solely because of racial classifications violates the central
meaning of the Equal Protection Clause.” 388 U. S., at 12.
With this link to equal protection the Court proceeded to
hold the prohibition offended central precepts of liberty:
“To deny this fundamental freedom on so unsupportable a
basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle
of equality at the heart of the Fourteenth Amendment, is
surely to deprive all the State’s citizens of liberty without
due process of law.” Ibid. The reasons why marriage is a
fundamental right became more clear and compelling from
a full awareness and understanding of the hurt that resulted from laws barring interracial unions.
The synergy between the two protections is illustrated
further in Zablocki. There the Court invoked the Equal
Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who
were behind on child-support payments from marrying
without judicial approval. The equal protection analysis
depended in central part on the Court’s holding that the
law burdened a right “of fundamental importance.” 434
U. S., at 383. It was the essential nature of the marriage
right, discussed at length in Zablocki, see id., at 383–387,
that made apparent the law’s incompatibility with requirements of equality. Each concept—liberty and equal
protection—leads to a stronger understanding of the other.
Indeed, in interpreting the Equal Protection Clause, the
Court has recognized that new insights and societal understandings can reveal unjustified inequality within our
most fundamental institutions that once passed unnoticed
and unchallenged. To take but one period, this occurred
with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of cover-
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21
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ture, see supra, at 6, invidious sex-based classifications in
marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T.
1971, No. 70–4, pp. 69–88 (an extensive reference to laws
extant as of 1971 treating women as unequal to men in
marriage). These classifications denied the equal dignity
of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family
and the wife is subject to him; her legal civil existence is
merged in the husband, except so far as the law recognizes
her separately, either for her own protection, or for her
benefit.” Ga. Code Ann. §53–501 (1935). Responding to a
new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on
marriage. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455
(1981); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142
(1980); Califano v. Westcott, 443 U. S. 76 (1979); Orr v.
Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S.
199 (1977) (plurality opinion); Weinberger v. Wiesenfeld,
420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S.
677 (1973). Like Loving and Zablocki, these precedents
show the Equal Protection Clause can help to identify
and correct inequalities in the institution of marriage,
vindicating precepts of liberty and equality under the
Constitution.
Other cases confirm this relation between liberty and
equality. In M. L. B. v. S. L. J., the Court invalidated
under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to
appeal the termination of their parental rights. See 519
U. S., at 119–124. In Eisenstadt v. Baird, the Court invoked both principles to invalidate a prohibition on the
distribution of contraceptives to unmarried persons but
not married persons. See 405 U. S., at 446–454. And in
Skinner v. Oklahoma ex rel. Williamson, the Court invalidated under both principles a law that allowed steriliza-
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tion of habitual criminals. See 316 U. S., at 538–543.
In Lawrence the Court acknowledged the interlocking
nature of these constitutional safeguards in the context of
the legal treatment of gays and lesbians. See 539 U. S., at
575. Although Lawrence elaborated its holding under the
Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws
making intimacy in the lives of gays and lesbians a crime
against the State. See ibid. Lawrence therefore drew
upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State
“cannot demean their existence or control their destiny by
making their private sexual conduct a crime.” Id., at 578.
This dynamic also applies to same-sex marriage. 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
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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 oppositesex couples.
IV
There may be an initial inclination in these cases to
proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been
insufficient democratic discourse before deciding an issue
so basic as the definition of marriage. In its ruling on the
cases now before this Court, the majority opinion for the
Court of Appeals made a cogent argument that it would be
appropriate for the respondents’ States to await further
public discussion and political measures before licensing
same-sex marriages. See DeBoer, 772 F. 3d, at 409.
Yet there has been far more deliberation than this
argument acknowledges. There have been referenda,
legislative debates, and grassroots campaigns, as well as
countless studies, papers, books, and other popular and
scholarly writings. There has been extensive litigation in
state and federal courts. See Appendix A, infra. Judicial
opinions addressing the issue have been informed by the
contentions of parties and counsel, which, in turn, reflect
the more general, societal discussion of same-sex marriage
and its meaning that has occurred over the past decades.
As more than 100 amici make clear in their filings, many
of the central institutions in American life—state and local
governments, the military, large and small businesses,
labor unions, religious organizations, law enforcement,
civic groups, professional organizations, and universities—
have devoted substantial attention to the question. This
has led to an enhanced understanding of the issue—an
understanding reflected in the arguments now presented
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for resolution as a matter of constitutional law.
Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that
process does not abridge fundamental rights. Last Term,
a plurality of this Court reaffirmed the importance of the
democratic principle in Schuette v. BAMN, 572 U. S. ___
(2014), noting the “right of citizens to debate so they can
learn and decide and then, through the political process,
act in concert to try to shape the course of their own
times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is
most often through democracy that liberty is preserved
and protected in our lives. But as Schuette also said,
“[t]he freedom secured by the Constitution consists, in one
of its essential dimensions, of the right of the individual
not to be injured by the unlawful exercise of governmental
power.” Id., at ___ (slip op., at 15). Thus, when the rights
of persons are violated, “the Constitution requires redress
by the courts,” notwithstanding the more general value of
democratic decisionmaking. Id., at ___ (slip op., at 17).
This holds true even when protecting individual rights
affects issues of the utmost importance and sensitivity.
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a
fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own
direct, personal stake in our basic charter. An individual
can invoke a right to constitutional protection when he or
she is harmed, even if the broader public disagrees and
even if the legislature refuses to act. The idea of the
Constitution “was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them
as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943).
This is why “fundamental rights may not be submitted to
a vote; they depend on the outcome of no elections.” Ibid.
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It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic
process. The issue before the Court here is the legal question whether the Constitution protects the right of samesex couples to marry.
This is not the first time the Court has been asked to
adopt a cautious approach to recognizing and protecting
fundamental rights. In Bowers, a bare majority upheld a
law criminalizing same-sex intimacy. See 478 U. S., at
186, 190–195. That approach might have been viewed as
a cautious endorsement of the democratic process, which
had only just begun to consider the rights of gays and
lesbians. Yet, in effect, Bowers upheld state action that
denied gays and lesbians a fundamental right and caused
them pain and humiliation. As evidenced by the dissents
in that case, the facts and principles necessary to a correct
holding were known to the Bowers Court. See id., at 199
(Blackmun, J., joined by Brennan, Marshall, and Stevens,
JJ., dissenting); id., at 214 (Stevens, J., joined by Brennan
and Marshall, JJ., dissenting). That is why Lawrence held
Bowers was “not correct when it was decided.” 539 U. S.,
at 578. Although Bowers was eventually repudiated in
Lawrence, men and women were harmed in the interim,
and the substantial effects of these injuries no doubt
lingered long after Bowers was overruled. Dignitary
wounds cannot always be healed with the stroke of a pen.
A ruling against same-sex couples would have the same
effect—and, like Bowers, would be unjustified under the
Fourteenth Amendment. The petitioners’ stories make
clear the urgency of the issue they present to the Court.
James Obergefell now asks whether Ohio can erase his
marriage to John Arthur for all time. April DeBoer and
Jayne Rowse now ask whether Michigan may continue to
deny them the certainty and stability all mothers desire to
protect their children, and for them and their children the
childhood years will pass all too soon. Ijpe DeKoe and
26
OBERGEFELL v. HODGES
Opinion of the Court
Thomas Kostura now ask whether Tennessee can deny to
one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with
the petitioners’ cases, the Court has a duty to address
these claims and answer these questions.
Indeed, faced with a disagreement among the Courts of
Appeals—a disagreement that caused impermissible
geographic variation in the meaning of federal law—the
Court granted review to determine whether same-sex
couples may exercise the right to marry. Were the Court
to uphold the challenged laws as constitutional, it would
teach the Nation that these laws are in accord with our
society’s most basic compact. Were the Court to stay its
hand to allow slower, case-by-case determination of the
required availability of specific public benefits to same-sex
couples, it still would deny gays and lesbians many rights
and responsibilities intertwined with marriage.
The respondents also argue allowing same-sex couples
to wed will harm marriage as an institution by leading to
fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage
severs the connection between natural procreation and
marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions
about whether to marry and raise children are based on
many personal, romantic, and practical considerations;
and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex
couples may do so. See Kitchen v. Herbert, 755 F. 3d 1193,
1223 (CA10 2014) (“[I]t is wholly illogical to believe that
state recognition of the love and commitment between
same-sex couples will alter the most intimate and personal
decisions of opposite-sex couples”). The respondents have
not shown a foundation for the conclusion that allowing
same-sex marriage will cause the harmful outcomes they
Cite as: 576 U. S. ____ (2015)
27
Opinion of the Court
describe. Indeed, with respect to this asserted basis for
excluding same-sex couples from the right to marry, it is
appropriate to observe these cases involve only the rights
of two consenting adults whose marriages would pose no
risk of harm to themselves or third parties.
Finally, it must be emphasized that religions, and those
who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The
First Amendment ensures that religious organizations and
persons are given proper protection as they seek to teach
the principles that are so fulfilling and so central to their
lives and faiths, and to their own deep aspirations to
continue the family structure they have long revered. The
same is true of those who oppose same-sex marriage for
other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a
matter of religious conviction or secular belief, may engage
those who disagree with their view in an open and searching debate. 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.
V
These cases also present the question whether the Constitution requires States to recognize same-sex marriages
validly performed out of State. As made clear by the case
of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing
harm on same-sex couples.
Being married in one State but having that valid marriage denied in another is one of “the most perplexing and
distressing complication[s]” in the law of domestic relations. Williams v. North Carolina, 317 U. S. 287, 299
(1942) (internal quotation marks omitted). Leaving the
current state of affairs in place would maintain and pro-
28
OBERGEFELL v. HODGES
Opinion of the Court
mote instability and uncertainty. For some couples, even
an ordinary drive into a neighboring State to visit family
or friends risks causing severe hardship in the event of a
spouse’s hospitalization while across state lines. In light
of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages
already have occurred—the disruption caused by the
recognition bans is significant and ever-growing.
As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue
marriage licenses to same-sex couples, the justifications
for refusing to recognize those marriages performed elsewhere are undermined. See Tr. of Oral Arg. on Question
2, p. 44. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all
States. It follows that the Court also must hold—and it
now does hold—that 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.
*
*
*
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice,
and family. In forming a marital union, two people become something greater than once they were. As some of
the petitioners in these cases demonstrate, marriage
embodies a love that may endure even past death. It
would misunderstand these men and women to say they
disrespect the idea of marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its
fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the
eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth
Circuit is reversed.
It is so ordered.
Cite as: 576 U. S. ____ (2015)
29
Opinion
of the Court
Appendix
A to opinion
of the Court
APPENDICES
A
State and Federal Judicial Decisions
Addressing Same-Sex Marriage
United States Courts of Appeals Decisions
Adams v. Howerton, 673 F. 2d 1036 (CA9 1982)
Smelt v. County of Orange, 447 F. 3d 673 (CA9 2006)
Citizens for Equal Protection v. Bruning, 455 F. 3d 859
(CA8 2006)
Windsor v. United States, 699 F. 3d 169 (CA2 2012)
Massachusetts v. Department of Health and Human
Services, 682 F. 3d 1 (CA1 2012)
Perry v. Brown, 671 F. 3d 1052 (CA9 2012)
Latta v. Otter, 771 F. 3d 456 (CA9 2014)
Baskin v. Bogan, 766 F. 3d 648 (CA7 2014)
Bishop v. Smith, 760 F. 3d 1070 (CA10 2014)
Bostic v. Schaefer, 760 F. 3d 352 (CA4 2014)
Kitchen v. Herbert, 755 F. 3d 1193 (CA10 2014)
DeBoer v. Snyder, 772 F. 3d 388 (CA6 2014)
Latta v. Otter, 779 F. 3d 902 (CA9 2015) (O’Scannlain,
J., dissenting from the denial of rehearing en banc)
United States District Court Decisions
Adams v. Howerton, 486 F. Supp. 1119 (CD Cal. 1980)
Citizens for Equal Protection, Inc. v. Bruning, 290
F. Supp. 2d 1004 (Neb. 2003)
Citizens for Equal Protection v. Bruning, 368 F. Supp.
2d 980 (Neb. 2005)
Wilson v. Ake, 354 F. Supp. 2d 1298 (MD Fla. 2005)
Smelt v. County of Orange, 374 F. Supp. 2d 861 (CD Cal.
2005)
Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp. 2d
1239 (ND Okla. 2006)
30
OBERGEFELL v. HODGES
Opinion
of the Court
Appendix
A to opinion
of the Court
Massachusetts v. Department of Health and Human
Services, 698 F. Supp. 2d 234 (Mass. 2010)
Gill v. Office of Personnel Management, 699 F. Supp. 2d
374 (Mass. 2010)
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (ND Cal.
2010)
Dragovich v. Department of Treasury, 764 F. Supp. 2d
1178 (ND Cal. 2011)
Golinski v. Office of Personnel Management, 824
F. Supp. 2d 968 (ND Cal. 2012)
Dragovich v. Department of Treasury, 872 F. Supp. 2d
944 (ND Cal. 2012)
Windsor v. United States, 833 F. Supp. 2d 394 (SDNY
2012)
Pedersen v. Office of Personnel Management, 881
F. Supp. 2d 294 (Conn. 2012)
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (Haw.
2012)
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (Nev. 2012)
Merritt v. Attorney General, 2013 WL 6044329 (MD La.,
Nov. 14, 2013)
Gray v. Orr, 4 F. Supp. 3d 984 (ND Ill. 2013)
Lee v. Orr, 2013 WL 6490577 (ND Ill., Dec. 10, 2013)
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (Utah 2013)
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (SD Ohio
2013)
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d
1252 (ND Okla. 2014)
Bourke v. Beshear, 996 F. Supp. 2d 542 (WD Ky. 2014)
Lee v. Orr, 2014 WL 683680 (ND Ill., Feb. 21, 2014)
Bostic v. Rainey, 970 F. Supp. 2d 456 (ED Va. 2014)
De Leon v. Perry, 975 F. Supp. 2d 632 (WD Tex. 2014)
Tanco v. Haslam, 7 F. Supp. 3d 759 (MD Tenn. 2014)
DeBoer v. Snyder, 973 F. Supp. 2d 757 (ED Mich. 2014)
Henry v. Himes, 14 F. Supp. 3d 1036 (SD Ohio 2014)
Latta v. Otter, 19 F. Supp. 3d 1054 (Idaho 2014)
Cite as: 576 U. S. ____ (2015)
31
Opinion
of the Court
Appendix
A to opinion
of the Court
Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (Ore. 2014)
Evans v. Utah, 21 F. Supp. 3d 1192 (Utah 2014)
Whitewood v. Wolf, 992 F. Supp. 2d 410 (MD Pa. 2014)
Wolf v. Walker, 986 F. Supp. 2d 982 (WD Wis. 2014)
Baskin v. Bogan, 12 F. Supp. 3d 1144 (SD Ind. 2014)
Love v. Beshear, 989 F. Supp. 2d 536 (WD Ky. 2014)
Burns v. Hickenlooper, 2014 WL 3634834 (Colo., July
23, 2014)
Bowling v. Pence, 39 F. Supp. 3d 1025 (SD Ind. 2014)
Brenner v. Scott, 999 F. Supp. 2d 1278 (ND Fla. 2014)
Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (ED La. 2014)
General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (WDNC 2014)
Hamby v. Parnell, 56 F. Supp. 3d 1056 (Alaska 2014)
Fisher-Borne v. Smith, 14 F. Supp. 3d 695 (MDNC 2014)
Majors v. Horne, 14 F. Supp. 3d 1313 (Ariz. 2014)
Connolly v. Jeanes, ___ F. Supp. 3d ___, 2014 WL
5320642 (Ariz., Oct. 17, 2014)
Guzzo v. Mead, 2014 WL 5317797 (Wyo., Oct. 17, 2014)
Conde-Vidal v. Garcia-Padilla, 54 F. Supp. 3d 157 (PR
2014)
Marie v. Moser, ___ F. Supp. 3d ___, 2014 WL 5598128
(Kan., Nov. 4, 2014)
Lawson v. Kelly, 58 F. Supp. 3d 923 (WD Mo. 2014)
McGee v. Cole, ___ F. Supp. 3d ___, 2014 WL 5802665
(SD W. Va., Nov. 7, 2014)
Condon v. Haley, 21 F. Supp. 3d 572 (S. C. 2014)
Bradacs v. Haley, 58 F. Supp. 3d 514 (S. C. 2014)
Rolando v. Fox, 23 F. Supp. 3d 1227 (Mont. 2014)
Jernigan v. Crane, ___ F. Supp. 3d ___, 2014 WL
6685391 (ED Ark., Nov. 25, 2014)
Campaign for Southern Equality v. Bryant, ___ F. Supp.
3d ___, 2014 WL 6680570 (SD Miss., Nov. 25, 2014)
Inniss v. Aderhold, ___ F. Supp. 3d ___, 2015 WL 300593
(ND Ga., Jan. 8, 2015)
32
OBERGEFELL v. HODGES
Opinion
of the Court
Appendix
A to opinion
of the Court
Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862 (S. D.,
2015)
Caspar v. Snyder, ___ F. Supp. 3d ___, 2015 WL 224741
(ED Mich., Jan. 15, 2015)
Searcey v. Strange, 2015 U. S. Dist. LEXIS 7776 (SD
Ala., Jan. 23, 2015)
Strawser v. Strange, 44 F. Supp. 3d 1206 (SD Ala. 2015)
Waters v. Ricketts, 48 F. Supp. 3d 1271 (Neb. 2015)
State Highest Court Decisions
Baker v. Nelson, 291 Minn. 310, 191 N. W. 2d 185 (1971)
Jones v. Hallahan, 501 S. W. 2d 588 (Ky. 1973)
Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993)
Dean v. District of Columbia, 653 A. 2d 307 (D. C. 1995)
Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999)
Brause v. State, 21 P. 3d 357 (Alaska 2001) (ripeness)
Goodridge v. Department of Public Health, 440 Mass.
309, 798 N. E. 2d 941 (2003)
In re Opinions of the Justices to the Senate, 440 Mass.
1201, 802 N. E. 2d 565 (2004)
Li v. State, 338 Or. 376, 110 P. 3d 91 (2005)
Cote-Whitacre v. Department of Public Health,446 Mass.
350, 844 N. E. 2d 623 (2006)
Lewis v. Harris, 188 N. J. 415, 908 A. 2d 196 (2006)
Andersen v. King County, 158 Wash. 2d 1, 138 P. 3d 963
(2006)
Hernandez v. Robles, 7 N. Y. 3d 338, 855 N. E. 2d 1
(2006)
Conaway v. Deane, 401 Md. 219, 932 A. 2d 571 (2007)
In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384
(2008)
Kerrigan v. Commissioner of Public Health, 289 Conn.
135, 957 A. 2d 407 (2008)
Strauss v. Horton, 46 Cal. 4th 364, 207 P. 3d 48 (2009)
Cite as: 576 U. S. ____ (2015)
33
Opinion
of the Court
Appendix
A to opinion
of the Court
Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009)
Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316
P. 3d 865 (2013)
Garden State Equality v. Dow, 216 N. J. 314, 79 A. 3d
1036 (2013)
Ex parte State ex rel. Alabama Policy Institute, ___ So.
3d ___, 2015 WL 892752 (Ala., Mar. 3, 2015)
34
OBERGEFELL v. HODGES
Opinion
of the Court
Appendix
B to opinion
of the Court
B
State Legislation and Judicial Decisions
Legalizing Same-Sex Marriage
Legislation
Del. Code Ann., Tit. 13, §129 (Cum. Supp. 2014)
D. C. Act No. 18–248, 57 D. C. Reg. 27 (2010)
Haw. Rev. Stat. §572 –1 (2006) and 2013 Cum. Supp.)
Ill. Pub. Act No. 98–597
Me. Rev. Stat. Ann., Tit. 19, §650–A (Cum. Supp. 2014)
2012 Md. Laws p. 9
2013 Minn Laws p. 404
2009 N. H. Laws p. 60
2011 N. Y Laws p. 749
2013 R. I. Laws p. 7
2009 Vt. Acts & Resolves p. 33
2012 Wash. Sess. Laws p. 199
Judicial Decisions
Goodridge v. Department of Public Health, 440 Mass.
309, 798 N. E. 2d 941 (2003)
Kerrigan v. Commissioner of Public Health, 289 Conn.
135, 957 A. 2d 407 (2008)
Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009)
Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316
P. 3d 865 (2013)
Garden State Equality v. Dow, 216 N. J. 314, 79 A. 3d
1036 (2013)
Cite as: 576 U. S. ____ (2015)
1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 14–556, 14-562, 14-571 and 14–574
_________________
JAMES OBERGEFELL, ET AL., PETITIONERS
14–556
v.
RICHARD HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, ET AL.;
14–562
VALERIA TANCO, ET AL., PETITIONERS
v.
BILL HASLAM, GOVERNOR OF
TENNESSEE, ET AL.;
APRIL DEBOER, ET AL., PETITIONERS
14–571
v.
RICK SNYDER, GOVERNOR OF MICHIGAN,
ET AL.; AND
GREGORY BOURKE, ET AL., PETITIONERS
14–574
v.
STEVE BESHEAR, GOVERNOR OF
KENTUCKY
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA
and JUSTICE THOMAS join, dissenting.
Petitioners make strong arguments rooted in social
policy and considerations of fairness. They contend that
same-sex couples should be allowed to affirm their love
and commitment through marriage, just like opposite-sex
couples. That position has undeniable appeal; over the
2
OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
past six years, voters and legislators in eleven States and
the District of Columbia have revised their laws to allow
marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex
marriage is a good idea should be of no concern to us.
Under the Constitution, judges have power to say what
the law is, not what it should be. The people who ratified
the Constitution authorized courts to exercise “neither
force nor will but merely judgment.” The Federalist No.
78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
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.
Today, however, the Court takes the extraordinary step
of ordering every State to license and recognize same-sex
marriage. Many people will rejoice at this decision, and I
begrudge none their celebration. But for those who believe
in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex
marriage have achieved considerable success persuading
their fellow citizens—through the democratic process—to
adopt their view. That ends today. Five lawyers have
closed the debate and enacted their 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.
Cite as: 576 U. S. ____ (2015)
3
ROBERTS, C. J., dissenting
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 majority expressly
disclaims judicial “caution” and omits even a pretense of
humility, openly relying on its desire to remake society
according to its own “new insight” into the “nature of
injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and
orders the transformation of a social institution that has
formed the basis of human society for millennia, for the
Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court
has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.”
Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J.,
dissenting). Accordingly, “courts are not concerned with
the wisdom or policy of legislation.” Id., at 69 (Harlan, J.,
dissenting). The majority today neglects that restrained
conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when
the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral
principles of constitutional law, but on its own “understanding of what freedom is and must become.” Ante, at
19. I have no choice but to dissent.
Understand well what this dissent is about: It is 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 five lawyers who happen
to hold commissions authorizing them to resolve legal
disputes according to law. The Constitution leaves no
doubt about the answer.
4
OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
I
Petitioners and their amici base their arguments on the
“right to marry” and the imperative of “marriage equality.”
There is no serious dispute that, under our precedents, the
Constitution protects a right to marry and requires States
to apply their marriage laws equally. The real question in
these cases is what constitutes “marriage,” or—more
precisely—who decides what constitutes “marriage”?
The majority largely ignores these questions, relegating
ages of human experience with marriage to a paragraph or
two. Even if history and precedent are not “the end” of
these cases, ante, at 4, I would not “sweep away what has
so long been settled” without showing greater respect for
all that preceded us. Town of Greece v. Galloway, 572
U. S. ___, ___ (2014) (slip op., at 8).
A
As the majority acknowledges, marriage “has existed for
millennia and across civilizations.” Ante, at 3. For all
those millennia, across all those civilizations, “marriage”
referred to only one relationship: the union of a man and a
woman. See ante, at 4; Tr. of Oral Arg. on Question 1,
p. 12 (petitioners conceding that they are not aware of any
society that permitted same-sex marriage before 2001). As
the Court explained two Terms ago, “until recent years,
. . . marriage between a man and a woman no doubt had
been thought of by most people as essential to the very
definition of that term and to its role and function
throughout the history of civilization.” United States v.
Windsor, 570 U. S. ___, ___ (2013) (slip op., at 13).
This universal definition of marriage as the union of a
man and a woman is no historical coincidence. Marriage
did not come about as a result of a political movement,
discovery, disease, war, religious doctrine, or any other
moving force of world history—and certainly not as a
result of a prehistoric decision to exclude gays and lesbi-
Cite as: 576 U. S. ____ (2015)
5
ROBERTS, C. J., dissenting
ans. It arose in the nature of things to meet a vital need:
ensuring that children are conceived by a mother and
father committed to raising them in the stable conditions
of a lifelong relationship. See G. Quale, A History of
Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57
(W. Miller transl. 1913) (“For since the reproductive instinct is by nature’s gift the common possession of all
living creatures, the first bond of union is that between
husband and wife; the next, that between parents and
children; then we find one home, with everything in
common.”).
The premises supporting this concept of marriage are so
fundamental that they rarely require articulation. The
human race must procreate to survive. Procreation occurs
through sexual relations between a man and a woman.
When sexual relations result in the conception of a child,
that child’s prospects are generally better if the mother
and father stay together rather than going their separate
ways. Therefore, for the good of children and society,
sexual relations that can lead to procreation should occur
only between a man and a woman committed to a lasting
bond.
Society has recognized that bond as marriage. And by
bestowing a respected status and material benefits on
married couples, society encourages men and women to
conduct sexual relations within marriage rather than
without. As one prominent scholar put it, “Marriage is a
socially arranged solution for the problem of getting people
to stay together and care for children that the mere desire
for children, and the sex that makes children possible,
does not solve.” J. Q. Wilson, The Marriage Problem 41
(2002).
This singular understanding of marriage has prevailed
in the United States throughout our history. The majority
accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between
6
OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
a man and a woman.” Ante, at 6. Early Americans drew
heavily on legal scholars like William Blackstone, who
regarded marriage between “husband and wife” as one of
the “great relations in private life,” and philosophers like
John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end,
procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke,
Second Treatise of Civil Government §§78–79, p. 39 (J.
Gough ed. 1947). To those who drafted and ratified the
Constitution, this conception of marriage and family “was
a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and
Family, in The Meaning of Marriage 100, 102 (R. George
& J. Elshtain eds. 2006).
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.” Windsor, 570 U. S., at ___ (slip op., at 17) (quoting
In re Burrus, 136 U. S. 586, 593–594 (1890)). There is no
dispute that every State at the founding—and every State
throughout our history until a dozen years ago—defined
marriage in the traditional, biologically rooted way. The
four States in these cases are typical. Their laws, before
and after statehood, have treated marriage as the union of
a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388,
396–399 (CA6 2014). Even when state laws did not specify this definition expressly, no one doubted what they
meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky.
App. 1973). The meaning of “marriage” went without
saying.
Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal
union of a man and woman for life,” which served the
purposes of “preventing the promiscuous intercourse of the
sexes, . . . promoting domestic felicity, and . . . securing the
Cite as: 576 U. S. ____ (2015)
7
ROBERTS, C. J., dissenting
maintenance and education of children.” 1 An American
Dictionary of the English Language (1828). An influential
19th-century treatise defined marriage as “a civil status,
existing in one man and one woman legally united for life
for those civil and social purposes which are based in the
distinction of sex.” J. Bishop, Commentaries on the Law of
Marriage and Divorce 25 (1852). The first edition of
Black’s Law Dictionary defined marriage as “the civil
status of one man and one woman united in law for life.”
Black’s Law Dictionary 756 (1891) (emphasis deleted).
The dictionary maintained essentially that same definition
for the next century.
This Court’s precedents have repeatedly described
marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to
marriage as “the union for life of one man and one woman,” Murphy v. Ramsey, 114 U. S. 15, 45 (1885), which
forms “the foundation of the family and of society, without
which there would be neither civilization nor progress,”
Maynard v. Hill, 125 U. S. 190, 211 (1888). We later
described marriage as “fundamental to our very existence
and survival,” an understanding that necessarily implies a
procreative component. Loving v. Virginia, 388 U. S. 1, 12
(1967); see Skinner v. Oklahoma ex rel. Williamson, 316
U. S. 535, 541 (1942). More recent cases have directly
connected the right to marry with the “right to procreate.”
Zablocki v. Redhail, 434 U. S. 374, 386 (1978).
As the majority notes, some aspects of marriage have
changed over time. Arranged marriages have largely
given way to pairings based on romantic love. States have
replaced coverture, the doctrine by which a married man
and woman became a single legal entity, with laws that
respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to
slavery” to promote “White Supremacy,” were repealed by
many States and ultimately struck down by this Court.
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ROBERTS, C. J., dissenting
Loving, 388 U. S., at 6–7.
The majority observes that these developments “were
not mere superficial changes” in marriage, but rather
“worked deep transformations in its structure.” Ante, at
6–7. They did not, however, work any transformation in
the core structure of marriage as the union between a man
and a woman. If you had asked a person on the street how
marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman
is subject to coverture.” The majority may be right that
the “history of marriage is one of both continuity and
change,” but the core meaning of marriage has endured.
Ante, at 6.
B
Shortly after this Court struck down racial restrictions
on marriage in Loving, a gay couple in Minnesota sought a
marriage license. They argued that the Constitution
required States to allow marriage between people of the
same sex for the same reasons that it requires States to
allow marriage between people of different races. The
Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal.
Baker v. Nelson, 409 U. S. 810 (1972).
In the decades after Baker, greater numbers of gays and
lesbians began living openly, and many expressed a desire
to have their relationships recognized as marriages. Over
time, more people came to see marriage in a way that
could be extended to such couples. Until recently, this
new view of marriage remained a minority position. After
the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of
same-sex marriage, many States—including the four at
issue here—enacted constitutional amendments formally
adopting the longstanding definition of marriage.
Over the last few years, public opinion on marriage has
Cite as: 576 U. S. ____ (2015)
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ROBERTS, C. J., dissenting
shifted rapidly. In 2009, the legislatures of Vermont, New
Hampshire, and the District of Columbia became the first
in the Nation to enact laws that revised the definition of
marriage to include same-sex couples, while also providing
accommodations for religious believers. In 2011, the New
York Legislature enacted a similar law. In 2012, voters in
Maine did the same, reversing the result of a referendum
just three years earlier in which they had upheld the
traditional definition of marriage.
In all, voters and legislators in eleven States and the
District of Columbia have changed their definitions of
marriage to include same-sex couples. The highest courts
of five States have decreed that same result under their
own Constitutions. The remainder of the States retain the
traditional definition of marriage.
Petitioners brought lawsuits contending that the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment compel their States to license and recognize
marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged the
democratic “momentum” in favor of “expand[ing] the
definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing
the issue from the place it has been since the founding: in
the hands of state voters.” 772 F. 3d, at 396, 403. That
decision interpreted the Constitution correctly, and I
would affirm.
II
Petitioners first contend that the marriage laws of their
States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court.
See Tr. of Oral Arg. on Question 1, at 38–39. The majority
nevertheless resolves these cases for petitioners based
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ROBERTS, C. J., dissenting
almost entirely on the Due Process Clause.
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.
A
Petitioners’ “fundamental right” claim falls into the
most sensitive category of constitutional adjudication.
Petitioners do not contend that their States’ marriage laws
violate an enumerated constitutional right, such as the
freedom of speech protected by the First Amendment.
There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution.
See ante, at 3, 14. They argue instead that the laws violate a right implied by the Fourteenth Amendment’s
requirement that “liberty” may not be deprived without
“due process of law.”
This Court has interpreted the Due Process Clause to
include a “substantive” component that protects certain
liberty interests against state deprivation “no matter what
process is provided.” Reno v. Flores, 507 U. S. 292, 302
(1993). The theory is that some liberties are “so rooted in
the traditions and conscience of our people as to be ranked
as fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts, 291
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ROBERTS, C. J., dissenting
U. S. 97, 105 (1934).
Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike
down state laws on the basis of that determination—raises
obvious concerns about the judicial role. Our precedents
have accordingly insisted that judges “exercise the utmost
care” in identifying implied fundamental rights, “lest the
liberty protected by the Due Process Clause be subtly
transformed into the policy preferences of the Members of
this Court.” Washington v. Glucksberg, 521 U. S. 702, 720
(1997) (internal quotation marks omitted); see Kennedy,
Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) (“One can conclude
that certain essential, or fundamental, rights should exist
in any just society. It does not follow that each of those
essential rights is one that we as judges can enforce under
the written Constitution. The Due Process Clause is not a
guarantee of every right that should inhere in an ideal
system.”).
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has
learned the hard way. The Court first applied substantive
due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the
Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied
rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that
“an act of Congress which deprives a citizen of the United
States of his liberty or property, merely because he came
himself or brought his property into a particular Territory
of the United States . . . could hardly be dignified with the
name of due process of law.” Id., at 450. In a dissent that
has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical
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ROBERTS, C. J., dissenting
opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we
are under the government of individual men, who for the
time being have power to declare what the Constitution is,
according to their own views of what it ought to mean.”
Id., at 621.
Dred Scott’s holding was overruled on the battlefields of
the Civil War and by constitutional amendment after
Appomattox, but its approach to the Due Process Clause
reappeared. In a series of early 20th-century cases, most
prominently Lochner v. New York, this Court invalidated
state statutes that presented “meddlesome interferences
with the rights of the individual,” and “undue interference
with liberty of person and freedom of contract.” 198 U. S.,
at 60, 61. In Lochner itself, the Court struck down a New
York law setting maximum hours for bakery employees,
because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a
health law.” Id., at 58.
The dissenting Justices in Lochner explained that the
New York law could be viewed as a reasonable response to
legislative concern about the health of bakery employees,
an issue on which there was at least “room for debate and
for an honest difference of opinion.” Id., at 72 (opinion of
Harlan, J.). The majority’s contrary conclusion required
adopting as constitutional law “an economic theory which
a large part of the country does not entertain.” Id., at 75
(opinion of Holmes, J.). As Justice Holmes memorably put
it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. Ibid. The Constitution “is
not intended to embody a particular economic theory . . . .
It is made for people of fundamentally differing views, and
the accident of our finding certain opinions natural and
familiar or novel and even shocking ought not to conclude
our judgment upon the question whether statutes embody-
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ROBERTS, C. J., dissenting
ing them conflict with the Constitution.” Id., at 75–76.
In the decades after Lochner, the Court struck down…