The Volokh Conspiracy
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Reflections on the 10th Anniversary of Obergefell v. Hodges - A Great Civil Rights Milestone that Could be Even Better
The Supreme Court's ruling striking down laws banning same-sex marriage was a great victory for liberty and equality. But it should have been based on better legal reasoning.
Today, is the tenth anniversary of Obergefell v. Hodges, the landmark Supreme Court decision striking down laws banning same-sex marriage. The ruling was a great victory for liberty and equality, and a striking example of how progress can be achieved by a combination of litigation and political action. The Court got the right result. But its reasoning should have been better. Instead of relying on a dubious mishmash of rationales, the Court would have done better to rule that laws banning same-sex marriage are unconstitutional because they discriminate on the basis of sex.
Obergefell was a great triumph for the civil rights of a long oppressed and despised minority. For decades, gays and lesbians had been discriminated against in a wide range of ways, and even subjected to criminal prosecution. Only with Lawrence v. Texas (2003) did the Supreme Court strike down anti-sodomy laws. I am old enough to remember widespread homophobic prejudice when I was growing up in the late 1980s and 1990s - not in a socially conservative area, but in an overwhelmingly liberal Boston suburb.
At the time of Obergefell, 37 states had same-sex marriage rights. But in 21 of them those rights depended on recent federal court decisions that would have been overturned had Obergefell come out the other way. Without Obergefell, many states would have continued to deny marriage equality for a long time to come, even up to the present day.
For gays and lesbians throughout much of the country, Obergefell was essential to ensuring they had secure marriage rights. In addition to the vastly important symbolism of this step towards equality, access to marriage enabled many thousands of same-sex couples to secure such practical benefits as adoption rights, inheritance rights, tax benefits, the ability to make medical decisions for sick or incapacitated partners, access to property rights reserved for married couples, and more. Most heterosexuals took these rights for granted, but gays and lesbians could not.
Obergefell was more than just a victory secured by lawyers making arguments in court. It was also the product of a longstanding civil rights movement. For decades, the gay rights movement had worked to influence public and elite opinion in favor of equality. Thanks to their efforts, public support for same-sex marriage rose from just 27% in 1996 to around 60% just before Obergefell was decided. At the same time, legal scholars and others advanced a variety of constitutional arguments for marriage equality which prevailed in several state supreme courts interpreting their state constitutions, and led to the invalidation of the federal Defense of Marriage Act in United States v. Windsor (2013), striking down a law that barred federal recognition of same-sex marriages performed in states where they were legal.
It took the combined force of shifts in public opinion and development in legal argument to make Obergefell possible. The former allowed the justices to take the step they did, confident that most of society would back their decision. Just a few months before Obergefell, Supreme Court Justice Ruth Bader Ginsburg openly stated that the shift in public attitudes had paved the way for such a ruling, whereas earlier she had feared the public would not accept it. The arguments developed by scholars and advocates made it possible for the Court to issue a decision in favor of marriage equality consistent with professional norms.
It is important to remember that the same-sex marriage movement did not triumph by promoting "identity politics" validating a distinct LGBT cultural identity, but by emphasizing how same-sex marriage is fundamentally similar to opposite-sex marriage; and gays and lesbians, more generally, are fundamentally similar to heterosexuals. As an Iowa Supreme Court ruling in favor of marriage equality put it, the plaintiffs in the case were "in committed and loving relationships, many raising families, just like heterosexual couples."
In this respect, they followed in the footsteps of the racial equality and gender equality movements before them. There is a crucial lesson here for future movements seeking to expand liberty and equality to new groups, such as transgender people and undocumented immigrants.
It is also notable that same-sex marriage has become even more secure in the last decade, despite a right-wing retrenchment on some other "culture war" issues. Public support has continued to rise, with 68% of Americans supporting same-sex marriage this year, albeit with growing partisan polarization. In 2022, a large bipartisan majority in Congress passed the Respect for Marriage Act, seeking to provide a measure of protection for same-sex marriage in the event of a reversal of Obergefell.
Neither the Republican Party nor the more conservative Supreme Court has shown much enthusiasm for overturning Obergefell in recent years, even as the Court did overturn Roe v. Wade, the 1973 decision establishing abortion rights, in the 2022 Dobbs decision. Justice Samuel Alito's majority opinion in Dobbs carefully distinguished Obergefell from Roe, and - significantly - no other justice joined Clarence Thomas's concurring opinion advocating Obergefell's reversal.
Obergefell does have one important shortcoming: the Court's reliance on flawed legal reasoning. Justice Anthony Kennedy's majority opinion relied on a combination of "substantive due process" liberty arguments under the Due Process Clause of the Fourteenth Amendment (which bars states from depriving people of "liberty" without "due process of law"), and equality arguments under the Equal Protection Clause (which forbids deprivation of the "equal protection of the laws"). Notoriously, the Court failed to make clear the scope of the liberty in question, or exactly why it applies to same-sex couples, but not to other marriages long barred by law, such as polygamous marriages or those between close blood relatives. On the equality side, the Court failed to explain exactly what the forbidden classification was, even though equal protection analysis normally requires courts striking down a law to specify a "suspect classification," such as race, gender, or religion. Justice Kennedy also failed to specify what level of scrutiny he was applying to laws banning same-sex marriage, even though that determines the burden of proof the government must meet to justify its laws.
This hodgepodge has damaged Obergefell's reputation among legal experts, and made it unclear whether the decision precludes other types of state discrimination against gays and lesbians. The Court could have avoided this problem by simply ruling that laws banning same-sex marriage discriminate on the basis of sex, as Northwestern law Prof. Andrew Koppelman and I advocated in an amicus brief we filed in the case on behalf of a cross-ideological group of legal scholars. Koppelman (a liberal living constitutionalist) and I (a libertarian originalist) agree on little else; but we are united on this issue. Since 1976, the Supreme Court had held that laws discriminating on the basis of sex are subject to heightened "intermediate" scrutiny that laws banning same-sex marriage could not overcome.
And, as we explained, such laws undeniably do discriminate on the basis of sex. If same-sex marriage is forbidden, Anne is allowed to marry Bob, but Charles cannot. Charles is denied the right to marry Bob solely because Charles is a man. Denial of a legal right solely because of gender is the very essence of sex discrimination. It is much the same reasoning as that which earlier led the Court to hold that laws banning interracial marriage discriminate on the basis of race, because under such constraints who you are allowed to marry depends on your race. We also demonstrated how such a holding is justified under Supreme Court precedent, and the original meaning of the Fourteenth Amendment.
A ruling based on sex discrimination would have established a much stronger basis for same-sex marriage rights. It would also set a precedent clearly barring most other types of state discrimination against LGBT people, though difficult issues would still remain in cases where sex discrimination is permitted by law, as with transgender persons' access to womens' sports teams and single-sex bathrooms.
The Supreme Court has ruled that discrimination against gays, lesbians, and transgender people is sex discrimination under the Title VII federal employment discrimination law, in a 2020 decision written by conservative Justice Neil Gorsuch, It unanimously reaffirmed that conclusion this year. If the opportunity arises, it would do well to apply the same reasoning to the Equal Protection Clause.
United States v. Skrmetti, the Supreme Court's controversial recent 6-3 decision upholding state laws banning gender-affirming surgery for minors in does not undercut the sex discrimination theory. In Skrmetti, the majority carefully avoided any imputation that discrimination against LGBT people is not sex discrimination by holding that laws banning gender-affirming surgery present a special case, because they "prohibit… healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor's sex." The Court reasoned that the provision of such treatments for purposes other than facilitating a change of gender is fundamentally different, from a medical point of view, than their use to achieve that goal. Whatever the merits of that reasoning, it has few implications for more conventional forms of discrimination against gays and lesbians. Three conservative justices wrote concurring opinions arguing that transgender people are not a "suspect class" warranting special judicial protection. But even they did not say that discrimination against transgender people is not sex discrimination.
Despite flaws in reasoning, Obergefell still reached the right result, and remains a civil rights milestone. For the many thousands of families who benefit from it, the Court's reasoning understandably matters less than results. But better reasoning would make the decision a stronger precedent for the future.
