Marriage Equality 101 and the remaining unanswered questions

 

The Supreme Court of the United States ruled in Obergefell v Hodges that state laws banning same-sex marriage and denying recognition of such marriages lawfully entered in other states are unconstitutional. The Court articulated that Baker v. Nelson is overruled and that the fundamental right to marry applies equally to same-sex couples as those of the opposite sex. Therefore, such laws denying this right violate the due process and equal protection clauses of the Fourteenth Amendment.

The opinion made clear that the fundamental right to marry, which has previously been recognized in numerous Supreme Court rulings, is not defined by the participants exercising that right. The Court explained that similar to Loving v. Virginia where the right was not defined as the right to interracial marriage, in this case the right at issue is not to same-sex marriage but purely a right to marry.

While the argument was made that a fundamental right is defined by history and tradition and historically same-sex marriages were not recognized, the Court stated that history and tradition guide the analysis but do not provide a boundary to the right. The Court explained that while the essential attributes to marriage have remained steady throughout history, the understanding of marriage has also been subject to change, especially with regards to women's roles in marriage. The Court addressed that previous cases may have presumed the participants in the marriage were of the opposite sex; however, the attributes of this right apply equally to opposite-sex and same-sex couples. The Court defined these attributes as follows: 1) the choice involved in marriage is essential to individual autonomy and part of the privacy rights granted to family decisions; 2) marriage is the only institution of its kind to support the union of two people and protect that intimate association; 3) marriage provides stability for children and families; and 4) marriage is the building block of our social order which is made clear by the myriad of both state and federal benefits associated with it. Because the attributes of the right to marry are equally applicable to same-sex and opposite-sex couples, the fundamental right to marry applies equally.

The Court also noted that it is not appropriate to wait for legislative action or further debate when a constitutional right is being infringed upon. While the democratic process is generally appropriate for change, this is not the case when a constitutionally protected right is at issue. Also noteworthy, the Court made clear that the First Amendment continues to protect religions and those exercising religious beliefs in teaching those beliefs regarding same-sex marriage.

Some issues were not answered by the decision with regard to same-sex marriages and will need to be addressed by the legislatures or the courts moving forward. For example, our firm is currently involved in litigation in the United States District Court for the Southern District of Indiana, where the issue is whether the presumption of parentage applies to same-sex couples when they are married and one of the parties gives birth to a child. In that litigation, the State of Indiana has taken the position that the presumption only applies to a husband of a wife. Other issues that may result is whether employee benefits may be withdrawn from employees who are not married to their significant other since now they can marry. Many large employers allowed both same-sex and opposite-sex couples who were not married to be covered by their health insurance plans. There are already moves to change some of these plans to restrict them only to married employees.

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