Today In History, 2015: U.S. Supreme Court Legalizes Marriage Equality Nationwide

Jim Burroway

June 26th, 2016

Jim Obergefell and John Arthur

Jim Obergefell and John Arthur

Jim Obergefell and John Arthur had spent two decades building a life together as husbands to each other in Cincinnati, even though the state of Ohio refused to recognize that fact. But in 2011, John was diagnosed amyotrophic lateral sclerosis (ALS, also known as Lou Gehrig’s disease), a degenerative neurological disorder that attacks nerve cells responsible for muscle movement. Those with the disease typically die of respiratory failure. As John’s condition rapidly deteriorated, the couple decided in 2013 that it was imperative for them to tie the knot now that several states were granting same-sex marriage license.

There was one hitch though: Ohio wasn’t one of those states. Its constitution had been amended in 2004 to ban same-sex marriage. John was far to ill to travel to another state on a commercial airline, so friends and family raised the $12,000 to charter a specially-equipped medical plane to fly to Baltimore, Maryland,  one of the few states that allowed same-sex marriages. “We landed at Baltimore, sat on the tarmac for a little bit, said ‘I do,’ and 10 minutes later were in the air on the way home,” Obergefell said.

"I Do." John Arthur and Jim Obergefell on the tarmac at Baltimore-Washington International Airport.

“I Do.” John Arthur and Jim Obergefell on the tarmac at Baltimore-Washington International Airport.

One week after their marriage, the couple filed suit in Federal District Court in Cincinnati seeking an injunction ordering the State of Ohio to recognize their marriage. Specifically, they wanted the marital status on John’s death certificate to reflect the fact that they were married. The Federal judged issued that injunction, citing the plaintiff’s “strong likelihood of success on the merits” and John’s declining health for the urgency of his order. John died in October. Ohio appealed, and Jim’s case case, along with four others, wound its way through the Sixth Circuit Court of Appeals.

Meanwhile, dozens of other cases filed in Federal courts across the country resulted in several other states’ bans on same-sex marriage getting struck down. In nearly every case, judges cited the 2013 Windsor Supreme Court decision which held that the Defense of Marriage Act was unconstitutional (above). And as those cases made their way through the appeals processes, those appeals courts were unanimously upholding their lower courts’ rulings. At first, everyone assumed that the process would end at the U.S. Supreme Court, which just two years earlier didn’t appear ready to deal with marriage equality when the Prop 8 case landed on its doorstep. When the Prop 8 case presented the Supreme Court with opportunity to strike down marriage bans nationwide, it instead chose to return the case to the lower courts over Prop 8 supports’ lack of standing to appeal. This way, the Court avoided entertaining the merits of the case itself (above).

But as more appeals courts weighed in, it looked as if the Supreme Court might not need to rule either way on marriage equality. If all of the Circuit Courts of Appeals were unanimous in striking down same-sex marriage bans in their circuits, then the Supreme Court could simply point to the fact that there were no conflicts in any of the appeals outcomes. And with no conflicts in any of the appeals outcomes, there was nothing for them to arbitrate.

But that path was closed when the Sixth Circuit Court of Appeals ruled against Obergefell and four other cases, and upheld marriage bans in Ohio, Michigan, Kentucky and Tennessee. This split among the Circuits all but guaranteed that the U.S. Supreme Court would now have to weigh in. The Court accepted the case of Obergefell v. Hodges on January 16, 2015, and heard oral arguments on April 28. Representing the marriage equality side was famed LGBT rights lawyer Mary Bonauto (Jun 8). She had been lead council in the Massachusetts 2003 case that led the Bay State becoming the first in the nation in marriage equality (Nov 18), and she followed that feat by serving as lead council for one of five federal cases to successfully challenged the Defense of Marriage Act ten years later.

ChartOn June 26, Bonauto accomplished for the entire nation what she had done for Massachusetts when the Supreme Court struck down marriage bans across the nation. In a 5-4 decision the court held that those bans violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Writing for the majority, Justice Antony Kennedy concluded:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Justice Antonin Scalia, who had been warning that this day would come ever since the U.S. Supreme Court overturned sodomy laws nationwide in 2003 (above), was, as you might expect, colorfully livid:

They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. …

The opinion is couched in a style that is as pretentious as its content is egotistic. …

The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. …

Justice Clarence Thomas’s dissent was even worse. He actually argued that LGBT people didn’t have it so bad, not as bad as what slaves had. And even if they had, so what?

Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

But no matter. Full equality for LGBT citizens was now the law of the land. With this act, the last prohibitive act towards gay people was now wiped from the nation’s law books.

Eric Payne

June 26th, 2016

Happy first anniversary to all of us who became married in our home state(s) a year ago, today.

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