Obergefell V. Hodges Opinion

“The Constitution promises liberty to all citizens, and that liberty holds that certain rights to express oneself is protected in the lawful realm. 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.” (Obergefell v. Hodges)

Before defending the petitioner’s case upon past precedent or principles, it is important to note the obvious changes in the institution itself. The respondents hold that the institution of marriage is foundation of society, and therefore, the extension of the privilege to same-sex couples would demean or degrade this foundation. It is important to remember that the institution of marriage has elements of both continuity and of change. While marriage has traditionally been understood as a union between a man and a woman, changes have also occurred, such as the decline of arranged marriages and law of coverture. (Obergefell v. Hodges) These aspects of marriage were once viewed as essential, but many would argue that the loss of these practices hasn’t cheapened the institution, but strengthened it through greater equality. (Obgerefell v. Hodges) Likewise, the petitioners are asking for the privilege of marriage out of respect for the union in hopes that they, too, can enjoy it’s benefits.

Our Nation’s generational and societal shift on the subject of homosexuality has seen massive change. Well into the 20th century, homosexuality was seen as “immoral” and a mental illness to be treated. Over the past few decades, the dynamic in our country has shifted. In Lawrence v. Texas, the Supreme court overruled its decision in Bowers v. Hardwick, striking down laws mandating that private, consensual sexual acts between adults are protected under the Due Process Clause and need no government intervention, concluding that “laws making same-sex intimacy a crime “demean the lives of homosexual persons.”” (Lawrence v. Texas) “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” as a result of the difference in perspective and legalization of homosexual contact. (Obergefell v. Hodges)

The Fourteenth Amendment promises all citizens the right to Equal Protection under the law with due process. The Equal Protection clause protects everyone from discrimination without regard to personal characteristics, such as gender, race, and, under recent interpretation, sexual orientation. The Supreme Court has long recognized marriage as a fundamental right related to liberty, privacy, association, and identity to the individual in 14 different cases since 1888. (American Foundation for Equal Rights) A few landmark cases stand out as instructional on these cases, such as Loving v. Virginia and Turner v. Safley. In Loving, bans on interracial marriage were invalidated based on the idea that the freedom to marry whoever one wishes, regardless of race, is foundational to the individual’s autonomy, and is not to be infringed on by the state. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” (Loving v. Virginia) (American Foundation for Equal Rights) In Turner, the rights of prisoners to marry was protected because the “decision to marry is a fundamental right” and an “expression of emotional support and public commitment.” (Turner v. Safley) (American Foundation for Equal Rights)

In the end, the individual’s autonomy when it comes to something as intimate as marriage is an obvious fundamental right, and the government cannot extend one group of people a privilege and right that is denied from another without due process. (Shmoop Editorial Team) While the natural inclination is to wait and await further legislation and debate on the subject, and 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. Therefore, the right should be distributed to gays and lesbians in all 50 states, just as progress in society needed to be pushed in other legal realms. The Constitution grants them equal dignity in the eyes of the law. (Obergefell v. Hodges)

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