By a 5-4 decision, the U.S. Supreme Court (SCOTUS), in the consolidated case of Obergefell et. al. v. Hodges et. al., has ruled that state laws that prohibit same-sex marriage are unconstitutional as a violation of the Due Process and Equal Protection Clauses of the 14th Amendment. Also unconstitutional are laws prohibiting a state from recognizing a valid out-of-state same-sex marriage.
The decision brings an end to the debate over same-sex marriage, which, when considered in an historical context, was swift and decisive. Consider that the first federal case concerning same-sex marriage was only decided in July 2010 (Gill v. Office of Personnel Management from the District Court in Massachusetts), and, five years later, all anti-same-sex marriage laws – both federal and state – have been ruled to be unconstitutional.
The opinion itself was rather strong and surprising in its analysis. The majority opinion, drafted by Justice Kennedy, and joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, first discussed the Due Process analysis. This was surprising because many of the prior decisions had eschewed the Due Process analysis in favor of the more suitable Equal Protection Analysis.
Central to the Due Process debate was whether the “right to marry” included same-sex marriage or whether same-sex marriage was itself a new right. If same-sex marriage was included within the “right to marry,” then it’s part of a fundamental right for which a state would have been required to demonstrate an extreme necessity for any laws impeding on that right. If same-sex marriage was considered to be a “new” right, then the state’s burden with respect to restrictions on this right would be much lesser.
The majority determined that the former is the case in that same-sex marriage is included in the fundamental right to marriage. The majority stated four principals for this conclusion. First, the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Second, the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals (note that the specific use of “two-person” – this was intentional so as to dissuade a subsequent argument concerning polygamy being included within the fundamental right to marriage). Third, the right to marry safeguards children and families and thereby prevents the children of same-sex marriages from being viewed as “outcasts.” Fourth, marriage is a keystone to the country’s social order, and within this context, there’s difference between same-sex and opposite-sex couples.
From an Equal Protection standpoint, the SCOTUS majority opined that the prohibition laws burdened the liberty of same-sex couples and abridged central precepts of equality as to those same-sex couples. By denying them the benefits of marriage, such laws bar them from exercising their fundamental rights.
The SCOTUS minority didn’t go “gently into that good night,” as Justice Roberts issued a vitro-filled dissent attacking the majority for its lack of basis of Constitutional law and its irrational approach of disregarding a view of marriage that has existed throughout the millennia (a concept that he often raised during oral arguments). Justice Scalia went so far as to open his dissent by stating that he “wrote separately to call attention to this Court’s threat to American democracy.” Both took offense at the interjection of justices (or, as Justice Roberts phrased it, “five lawyers”) halting the natural democratic process.
New Marital Order
With this opinion, the debate over whether a state’s anti-same-sex marriage laws are constitutional is now over. That’s the good news. In many states, however, the aftermath in applying this “new marital order” is just beginning.
As a basic Constitutional law pretext, when a statute is declared to be “unconstitutional,” the general rule is that the statute, though having the form and name of law, is in reality no law but is wholly void and ineffective for any purpose; further, because unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed and never existed so as to be void ab initio. This means that any such state provisions must be interpreted as if they never existed.
For some states that recognized domestic partnerships and afforded them certain marital rights, this wouldn't appear to be a huge issue because such persons already had some property and inheritance rights as if they were married. However, when considering laws in a state such as Florida, which didn’t have any domestic partnership laws prior to its own anti-same-sex marriage laws being determined to be unconstitutional, the effect could be chilling.
Consider a scenario in which, in late 2013 (which is after SCOTUS’s 2013 decision in U.S. v. Windsor), a same-sex married couple purchase a parcel of real property in Florida. The wealthy spouse uses all of her funds and places title in the couple’s joint names. If the couple were an opposite-sex married couple, title would automatically be held as tenants-by-the-entireties, which provides the couple with both creditor protection and automatic survivorship provisions. If title were simply in the couple’s names and nothing else, because Florida didn’t recognize the marriage, title would be held by the couple as tenants-in-common and, therefore, there would be no survivorship provisions and no creditor protection. Then, in 2014 a creditor of one of the spouses records a judgment against the property and forces a sale. Now, with SCOTUS determining that anti-same-sex marriage laws to be unconstitutional and with the principle of void ab initio, Florida’s laws are deemed never to have existed. If such laws didn’t exist, then the marriage was technically recognized in 2013, and if the marriage is recognized, then title should have been held as tenants-by-the-entireties. Assuming that’s the case, then the judgment never should have been permitted to have been recorded against the property because the creditor wasn’t a creditor of both spouses.
This is just one of several issues which the various states must now consider. As you can see, the Obergefell decision really isn’t the end – it’s just the beginning.