The surprises in the Supreme Court's same-sex marriage decision

The Supreme Court’s decision in Obergefell v Hodges fulfilled predictions that the court would affirm marriage equality nationwide as a fundamental constitutional right.

However, the case also offered a few surprises and a few disappointments.

To understand those, one needs to put the decision into its historical and legal frameworks.

From sacrament to contract

For centuries of Western history, the question of who controls the legal aspects of marriage has been highly contested.

Until the 16th century, the Catholic Church defined the conditions for marriage. Since the Reformation, there has been a continuous debate between ecclesiastical authorities and civil authorities about issues including who can marry and what rights and responsibilities marriage confers.

Over time, however, marriage shifted from being a sacrament to a civil contract as governments took the power to define marriage from religious sources.

In the United States, it was the legislature within each state that defined the criteria for entry into marriage by prohibiting some pairings, such as interracial marriages and marriages between minors, and imposing blood tests and registration requirements.

Marriage in the United States has always been a civil contract entered into between the two parties and the state and, although it can be performed by religious authorities, its validity is determined by reference to civil law.

This arrangement is mandated by the constitutional prohibition against an established religion and is the result of this country being governed by a secular legal system.

Until the late 20th century, the question of same-sex marriages wasn’t even up for debate because same-sex relationships were criminalized in most states.

Requesting a marriage license, in other words, was tantamount to confessing to a crime.

Gay rights and equal protection

As the gay rights movement began to flourish in the years after the Stonewall riots of 1969, states started decriminalizing same-sex intimate relations. And as that happened, gay couples sought greater and greater legal protections against discrimination.

The Stonewall Inn’s sign in September of 1969, after the riots earlier that year.Wikimedia Commons, CC BY-SA

Most of these efforts, however, were initially rejected by state courts and state legislatures, including all efforts to obtain equal marriage rights.

In 1972, in Baker v Nelson, the Supreme Court refused to hear an appeal from a Minnesota Supreme Court decision upholding a Minnesota law defining marriage as between a man and a woman, on the grounds that it did not present a federal question.

In other words, marriage was a state’s rights issue and the federal Constitution had nothing to say about the matter.

Baker came just five years after the court’s landmark decision in Loving v Virginia, which struck down Virginia’s law banning interracial marriages.

Since the early 20th century, the court has held that certain civil liberties - such as speech, privacy, and the decision about whom to marry - are so fundamental to human dignity and autonomy that they cannot be infringed by state or federal laws.

These fundamental rights are protected by the Fifth and Fourteenth Amendments' prohibition against the deprivation of life, liberty or property without due process of law.

The recognition that the liberty element of the due process clause contains protections for substantive legal rights beyond just the right to physical liberty has been one of the most controversial aspects of 20th-century constitutional jurisprudence.

Marriage cases highlight tension in the theory of ‘fundamental rights’

These two marriage cases – Baker and Loving – illustrate the due process controversy and created a profound tension in the court’s theory of fundamental rights.

Marriage was deemed a fundamental right protected by the US Constitution in Loving, but the prohibition against same-sex marriage was deemed a purely states’ rights issue in Baker, making marriage in this case a nonfundamental right.

Chief Justice Earl Warren wrote the unanimous majority opinion in Loving v Virginia, declaring marriage a fundamental right.Harris & Ewing

Ultimately, there is a further question to be asked. Surely a state may impose limitations on certain marriages without running afoul of the Constitution, such as when it prohibits marriages between minors or coerced marriages?

The underlying question in all of these marriage cases, in other words, is figuring out when a state’s regulation of marriage is a permissible regulation that furthers important public policies, and when it is an infringement of the fundamental right to marry.

In Obergefell, the majority opinion resolved this tension in favor of Loving, and expressly reversed Baker. But not without controversy.

As the dissenters argued, Loving merely held that traditional marriage (ie, between a man and a woman) cannot be denied on the basis of race. It did not hold that any arrangement that someone wanted to call a “marriage” carries constitutional protections.

But Chief Justice Roberts opined that the majority’s decision about the dignity of marriage applied with equal force to plural marriages. He said:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.

Although the decision in Obergefell merely adds same-sex marriages between two consenting adults to the category of marriages protected as a fundamental right, because they are so closely akin to opposite-sex marriages, the chief justice is not off base to recognize that raising marriage to a fundamental right raises the specter of constitutional protections for polygamy.

The court cracks open the equal protection door

At the same time the Supreme Court was developing its robust theory of personal liberties, it was also mapping out a robust theory of the equal protection clause of the Fourteenth Amendment that carefully scrutinized state or federal laws that “classified” people by race, gender, age, alien status, illegitimacy and other immutable characteristics.

Since the 1990s, there has been a strong push by gay-rights advocates to have sexual minorities recognized as a so-called “suspect class” deserving of heightened protections because they have been historically subject to legal and social discrimination.

Just as laws infringing upon fundamental rights are carefully scrutinized by the court, laws that disadvantage certain groups have also been carefully scrutinized by the court under the Fourteenth Amendment’s prohibition against denying people the equal protection of the laws.

Laws mandating racial segregation or denying women equal educational opportunities have been struck down on the grounds that race and gender classifications in law do not serve a compelling public purpose.

If sexual minorities were recognized as a suspect class, like racial minorities, then laws treating them differently from the majority population would likely be struck down as unconstitutional.

In all prior gay-rights decisions, however, the Supreme Court has refused to take up the possibility of recognizing sexual minorities as a suspect classification.

This is why the biggest surprise in Obergefell was Justice Kennedy’s discussion – albeit brief – of the equal protection implications of same-sex marriage bans.

Justice Kennedy explored the possibility that sexual minorities have equal protection rights when he stated:

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.

I predict that it is this passage from Obergefell that will have the most significant legal effect. Its implication is that laws cannot disadvantage gay and lesbian people in their exercise of fundamental liberties, which include not just marriage, but also their rights to safety, employment, housing and educational opportunities.

Associate Justice Anthony Kennedy delivered the majority decision in Obergefell v Hodges.Collection of the Supreme Court of the United States

The fact is that to date, most states do not include provisions in their state laws prohibiting discrimination on the basis of sexual orientation.

The dissenters

Not surprisingly, the four conservatives of the court issued dissents that focused their criticism primarily on the judicial activism of the majority and – as they see it – the blows to democracy and states' rights that occur when the court affirms any individual right as deserving of constitutional protections.

Of course, any time a court strikes down legislation, it is engaging in anti-majoritarian law-making. But that is the point of the Bill of Rights - to protect individuals from the “tyranny of the majority.”

And the losers in this debate are already gearing up to represent the issue as one of religious liberties caught in the crossfire.

The majority opinion acknowledged the rights of those who disapprove of same-sex marriage to continue to believe that homosexuality is a sin. Nor are religious groups obliged to perform same-sex marriages. Justice Kennedy explains that,

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.

But he also acknowledged that their First Amendment rights do not allow them to impose their views on the rest of the population through the coercive arm of the law.

As the religious battleground heats up, the real question, to my mind, is going to be whether the conservatives on the court are willing to maintain the separation of church and state mandated by the First Amendment, which places marriage firmly in the side of secular law.

Danaya Wright does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.