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Whether homosexuals have a fundamental right to marry under the 14th Amendment, and thus whether the Supreme Court can order states to issue gay marriage licenses and to recognize out-of-state gay marriage licenses, despite state laws or amendments to the contrary.
The petitioners in this case were 14 homosexual couples and two men who wanted their states to issue same-sex marriage licenses, or wanted their home states to recognize their out-of-state, same-sex marriage licenses. The Supreme Court had previously dismissed an appeal on homosexual marriage bans in Baker v. Nelson (1971) “for want of a substantial federal question,” ruling that regulation of marriage was a state matter. Since the 1970s, state and federal courts, state constitutional amendments, and federal and state legislation had variously sanctioned, struck down, supported, or prohibited same-sex marriage throughout the United States.
The Court Below
Obergefell v. Hodges in the Sixth Circuit was a consolidation of six lower-court cases originating in district courts in Kentucky, Michigan, Ohio, and Tennessee. The Sixth Circuit, rather than basing its decision on originalism, rational basis review, animus, fundamental rights, suspect classifications, or evolving meaning, which the plaintiffs had variously invoked, the Sixth Circuit instead simply upheld Baker v. Nelson and ruled that state voters should decide the question through the democratic process. See the opinion here:
DeBoer v. Snyder, 772 F.3d 388, Nos. 14-1341; 3057; 3464; 5291; 5297; 5818 (6th Cir. 2014)
This ruling was contrary to rulings in the Fourth, Seventh, Ninth, and Tenth Circuits, which had found homosexual marriage bans unconstitutional. Four of the petitioners from the Sixth Circuit appealed to the Supreme Court, which consolidated the cases. See the opinion here:
Obergefell v. Hodges, 135 S.Ct. 2584 (2015)
Questions before the Supreme Court
Consolidated with dockets 14-562, 14-571 and 14-574 and limited to the following questions:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
CCJ Founding Director Dr. John Eastman was the counsel of record in an amicus curiae filed under Public Affairs Campaign and Opinion Expert Frank Shubert and National Organization form Marriage in support of Hodges and the other petitioners.
Obergefell and other petitioners are asking the Supreme Court to intervene in a heated political and policy dispute, an arena in which judicial authority is at its lowest ebb. From the Dredd Scott decision to Roe v. Wade (1973), the Court’s interference in major policy disputes has often inflamed heated political and social debates, rather than having settled the public policy issues. Obergefell’s claims threaten to drag this country into another such quagmire. There are powerful democratic forces on both sides of this issue, demonstrating that the redefinition of marriage is by no means settled. Indeed, since 1998 this question has been placed on state ballots 39 times, and only thrice have the people of the states voted in favor of same-sex marriage.
Of the polls that show support for same-sex marriage, many of them suffer from methodological flaws that skew the results. Several critical factors that influence the results of public opinion polling include the audience surveyed, the order of the questions, and the wording of the questions. For example, in general people tend to gravitate toward favoring an issue rather than opposing it. In almost every public polling on marriage, the “for” position was in support of redefining marriage while the “against” position was associated with support for traditional marriage. Wordings of questions in some other polls introduced other concepts, such as “rights,” for example: Do you favor making gay marriage legal so that couples can have “the same rights as traditional marriages[?]” These and other factors tilted results toward favoring gay marriage.
Other recent polls demonstrate that the nation remains significantly divided over same-sex marriage. Indeed, some recent polls show a majority of support for traditional marriage and a corresponding drop in support for same-sex marriage. The firm WPA Opinion Research, for example, conducted a survey in 2015 that showed 53% support for the statement that “marriage should be defined only as a union between one man and one woman.” In 2012 The Polling Company found 60% support traditional marriage. In 2015, WPA found 61% support for this statement: “States and citizens should remain free to uphold marriage as the union of a man and a woman and the Supreme Court shouldn’t force all 50 states to redefine marriage.” Other polling firms such as Rasmussen Reports and Pew Research Center have noted significant drops in support for gay marriage since 2014.
Biased media also has helped shaped public perception of gay marriage by slanting articles. Pew Research Center on Journalism and Media, for example, examined 500 news stories published between March 18 and May 12, 2014, reporting that “stories with more statements supporting same-sex marriage outweighed those with more statements opposing it by a margin of roughly 5-to-1.”
The right to gay marriage is not “fundamental,” as some petitioners have claimed. The Constitution neither authorizes this Court to overrule existing judicial precedents nor abrogate established state policy judgements. This Court has never recognized the right to gay marriage as fundamental, and it has specifically cautioned against creating new “fundamental” rights. The right of marriage between a man and a woman was recognized as fundamental in Loving v. Virginia (1967) because it was “fundamental to our very existence and survival.” Absent a procreative ability, gay marriage must fall outside of this definition of a fundamental right to marry. Thus the Court must turn to Washington v. Glucksberg (1997) for its definition of a “fundamental” right, which depends primarily on the feature that it be rooted in the history and tradition of this country. Clearly the right to gay marriage falls outside of this definition as well. Such policy issues have long been left to the states.
Upholding traditional marriage exclusively does not violate the Equal Protection Clause of the 14th Amendment either, as some other lower-court petitioners have claimed. Equal protection analysis is only triggered if people who are “similarly situated” are treated differently. Lower courts erroneously accepted claims that emphasized only those aspects of gay marriage that are similar to traditional marriage, rather than considering ways in which they are substantially different. Marriage has been about much more than self-fulfillment of adult relationships. It is the principal manner in which society structures the critical function of procreation and the rearing of children, situations in which gay partnerships are not similarly situated. Thus the Equal Protection Clause does not prohibit bans on same-sex marriage.
The fundamental issue is: Who makes the policy judgement about the purpose of marriage, the people, or the courts? The petitioners are asking this Court to substitute its own public policy views for those of 50 million American voters who, in recent ballots to uphold traditional marriage, have necessarily determined that the historic purpose of this institution still matters. This is a quintessentially democratic public policy debate, a political question to be decided by the people of the states, not a justiciable issue for the high Court.
The Supreme Court rejected CCJ’s evidence of skewed polls, indications of strong support for traditional marriage, and arguments that the ongoing debate on same-sex marriages should be decided by the people of the states. It also rejected CCJ’s argument that the Equal Protection Clause is inapplicable to same-sex marriages because of the substantial differences in purpose between heterosexual and homosexual relationships. Despite no constitutional history of recognizing the so-called “right” to same-sex marriages, the Court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process and Equal Protection clauses of the 14th Amendment.