case15 min read (3,067 words)

Obergefell v. Hodges (2015)

Citation: 576 U.S. 644 (2015) Court: Supreme Court of the United States Author: Justice Anthony Kennedy

Parties

The Obergefell case is a consolidation of four cases from the Sixth Circuit Court of Appeals, each brought by same-sex couples or widowers challenging state marriage bans in Michigan, Ohio, Kentucky, and Tennessee. Fourteen plaintiff couples and two widowers appear in the consolidated caption.

James Obergefell — the lead named plaintiff. An Ohio resident whose partner of twenty years, John Arthur, was dying of ALS. In July 2013, after United States v. Windsor invalidated the federal Defense of Marriage Act, Obergefell and Arthur flew by medical jet to Maryland, where same-sex marriage was legal, and married on the tarmac before returning to Ohio. When Arthur died three months later, Obergefell sued to have his name recorded as surviving spouse on the death certificate. Ohio refused, citing its 2004 constitutional amendment barring recognition of same-sex marriages.

Richard Hodges — Director of the Ohio Department of Health. Named respondent because Ohio death certificates are issued through his department.

Companion cases included Michigan plaintiffs April DeBoer and Jayne Rowse (who sought to jointly adopt their three children), Tennessee plaintiffs Valeria Tanco and Sophy Jesty (seeking recognition of their New York marriage), Kentucky plaintiffs Greg Bourke and Michael De Leon (challenging the state's marriage ban), and others.

Lead counsel for the plaintiffs: Mary L. Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) argued the marriage-recognition question; Douglas Hallward-Driemeier argued the marriage-licensing question. The case was argued over two and a half hours on April 28, 2015 — an unusually long argument reflecting the importance the Court assigned to the questions.

Facts

The factual background of Obergefell spans fourteen years of legal and social change.

In 2003, the Massachusetts Supreme Judicial Court held in Goodridge v. Department of Public Health that the state constitution required recognition of same-sex marriages. Massachusetts began issuing marriage licenses to same-sex couples in May 2004. Between 2004 and 2013, state courts in Connecticut, Iowa, California (briefly), Vermont, New Hampshire, New York, Maine, Washington, Maryland, and the District of Columbia recognized same-sex marriage by state action — legislative, judicial, or referendum.

In 2013, two Supreme Court decisions reshaped the landscape. United States v. Windsor, 570 U.S. 744 (2013), invalidated Section 3 of the federal Defense of Marriage Act, which had prohibited federal recognition of same-sex marriages that states had already legalized. Hollingsworth v. Perry, 570 U.S. 693 (2013), allowed a federal district court ruling against California's Proposition 8 to stand, restoring same-sex marriage in California. Neither decision reached the constitutional question of whether states must license or recognize same-sex marriages; both left room for continued state-by-state litigation.

Between Windsor and Obergefell, federal district and circuit courts ruled on a wave of challenges to state marriage bans. By early 2015, courts in approximately twenty-five states had struck down bans. The Tenth, Fourth, Seventh, Ninth, and Second Circuits all ruled against state bans. Then the Sixth Circuit split — DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), upheld the marriage bans of Michigan, Ohio, Kentucky, and Tennessee. The split among the circuits forced the Supreme Court to take the question.

The Court granted certiorari in January 2015 on two questions: (1) whether the Fourteenth Amendment requires a state to license marriages between same-sex couples; and (2) whether the Fourteenth Amendment requires a state to recognize same-sex marriages validly licensed by other states. Argument was held April 28, 2015. Decision was handed down June 26, 2015 — the same date as Windsor (June 26, 2013) and Lawrence v. Texas (June 26, 2003), a pattern Justice Kennedy acknowledged as coincidence and others read as Kennedy's signature.

Question presented

Two interlocking questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when the marriage was lawfully licensed and performed out-of-state?

Holding

Yes, on both questions. The Fourteenth Amendment requires a state to license same-sex marriages on the same terms as opposite-sex marriages. It also requires a state to recognize same-sex marriages validly performed elsewhere. All state marriage bans and non-recognition statutes are invalid under the Constitution. The decision was 5-4. Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts filed a dissenting opinion joined by Justices Scalia and Thomas. Justice Scalia filed a separate dissent joined by Justice Thomas. Justice Thomas filed a separate dissent joined by Justice Scalia. Justice Alito filed a separate dissent joined by Justices Scalia and Thomas.

The four-dissent structure is distinctive. Each dissent staked different doctrinal and institutional ground — the majority is effectively confronting four different critiques simultaneously.

Reasoning

Justice Kennedy's majority opinion proceeded in four movements, each addressing a distinct aspect of the constitutional claim.

First, the history of marriage. At 576 U.S. at 659-663, Kennedy surveyed the institution's evolution: the dissolution of coverture, the invalidation of anti-miscegenation laws (citing Loving v. Virginia), the recognition of marriage rights for prisoners (Turner v. Safley), the recognition of marriage rights for child-support-delinquent parents (Zablocki v. Redhail). Kennedy's point: the institution of marriage has never been static. American constitutional law has repeatedly expanded the definition of who may marry, guided by evolving understandings of liberty and equality. Extending marriage to same-sex couples fits this pattern, not as a revolution but as continuation.

Second, the due process analysis. At 576 U.S. at 663-672, Kennedy identified four principles that explain why the right to marry is fundamental under the Due Process Clause:

  1. Autonomy. The right to personal choice regarding marriage is inherent in the concept of individual autonomy. "Decisions about marriage are among the most intimate that an individual can make."
  2. Intimate association. The right to marry supports "a two-person union unlike any other in its importance to the committed individuals." Marriage's significance to the individuals involved does not depend on their sex.
  3. Child-rearing. The right to marry "safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education." Same-sex couples raise children; denying them marriage harms those children by subjecting them to stigma and legal uncertainty.
  4. Institutional keystone. Marriage has long been "a keystone of our social order." Excluding same-sex couples from the institution places them outside that social order in a way that no other classification does in contemporary America.

Each principle, Kennedy argued, applies with equal force to same-sex couples and opposite-sex couples. The constitutional analysis is the same.

Third, the equal protection analysis. At 576 U.S. at 672-675, Kennedy folded equal protection into the due process analysis rather than treating it as a separate inquiry. The two principles, Kennedy wrote, "are connected in a profound way." Denying same-sex couples the right to marry both violates their individual liberty and their equal standing before the law. The formulation tracks Loving v. Virginia's treatment of anti-miscegenation laws — equal protection and due process violations reinforcing one another, with neither requiring the other to support the holding.

Fourth, the rejection of democratic-process arguments. At 576 U.S. at 675-678, Kennedy addressed the principal counterargument: that the question of same-sex marriage should be resolved through democratic processes rather than judicial decision. Kennedy acknowledged that democratic deliberation had produced many of the positive developments for same-sex couples in the preceding decade — state legislation, state constitutional amendments, state supreme court decisions. But constitutional rights do not depend on majority approval. "The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right." The Bill of Rights and the Fourteenth Amendment were designed precisely to protect certain rights from the political process.

The opinion closes with what may be the most-quoted passage in any twenty-first-century Supreme Court decision. At 576 U.S. at 681: "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."

Dissents

Chief Justice Roberts (joined by Scalia and Thomas). Roberts's dissent focused on institutional concerns: the majority had bypassed democratic deliberation on an issue where state democracy was already moving. "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be." Roberts invoked Lochner v. New York (1905) — the era-defining case in which the Court had read substantive economic rights into the Fourteenth Amendment, later repudiated — as the cautionary precedent. His concern was doctrinal creep: if the Fourteenth Amendment protected a right to same-sex marriage that the framers did not intend, it could protect any right future judges might discover. Roberts closed with a pointed note: "If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Justice Scalia (joined by Thomas). Scalia's dissent was rhetorically sharp and institutionally despairing. He focused on the composition of the Court — "a select, patrician, highly unrepresentative panel of nine" — and argued that a constitutional question affecting every American should be answered by democratic processes, not by lifetime-appointed judges from elite law schools. He treated the majority opinion's soaring language as pretense covering a policy judgment. "The opinion is couched in a style that is as pretentious as its content is egotistic." Scalia's dissent is the most quoted of the four in popular debate; it is also the least doctrinally focused, concentrating on institutional rather than textual critique.

Justice Thomas (joined by Scalia). Thomas's dissent staked the most far-reaching textual position. He argued that the Due Process Clause does not protect substantive rights at all — only procedural ones — and that the entire substantive due process tradition from Lochner through Griswold v. Connecticut to Roe v. Wade to Obergefell is a doctrinal mistake. Thomas was the only Justice to suggest that Loving v. Virginia's substantive due process reasoning was itself incorrect. His dissent is a minority view within the dissent itself — Roberts and Scalia accepted the substantive due process framework and argued that same-sex marriage was not within it; Thomas argued the framework was illegitimate. Thomas's position presaged his later votes in Dobbs v. Jackson Women's Health Organization (2022), where he alone called for reconsidering Griswold, Lawrence, and Obergefell themselves.

Justice Alito (joined by Scalia and Thomas). Alito's dissent focused on the social consequences of the decision. He argued that the majority had redefined marriage in a way that would stigmatize and marginalize those who continue to hold traditional views. "The implications of this argument will be exploited by those who are determined to stamp out every vestige of dissent." Alito's dissent forecast the free-exercise and free-speech conflicts that would follow Obergefell — conflicts that have since produced cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) and 303 Creative LLC v. Elenis (2023). His concern was less about the constitutional question than about the cultural and legal aftermath.

Significance

Obergefell is the capstone of the equal-protection / substantive due process arc traced through Loving v. Virginia (1967), Lawrence v. Texas (2003), and United States v. Windsor (2013). The arc establishes a constitutional principle that individuals' intimate and associational choices are protected from state interference absent compelling justification — and that the equal protection clause forbids the state from making those choices contingent on suspect classifications.

First, the direct effect. On June 26, 2015, same-sex marriages became legal in all fifty states, the District of Columbia, and U.S. territories. The thirteen states that had retained bans immediately began issuing licenses. By the end of 2015, every state and major territory had issued same-sex marriage licenses.

Second, the doctrinal footprint. Obergefell is cited in dozens of post-2015 cases involving LGBTQ rights, family law, and substantive due process. Pavan v. Smith, 582 U.S. 563 (2017), enforced Obergefell against Arkansas's refusal to list same-sex spouses on birth certificates. Bostock v. Clayton County, 590 U.S. ___ (2020), extended Title VII employment protections to sexual orientation and gender identity on statutory grounds but drew clear doctrinal energy from Obergefell's recognition of the dignity claims of LGBTQ individuals. Fulton v. City of Philadelphia, 593 U.S. ___ (2021), addressed free-exercise claims of a Catholic social services organization declining to certify same-sex couples as foster parents — a conflict Obergefell had foreseen.

Third, the tension with religious liberty. Obergefell's majority included brief language assuring that religious objectors would retain their rights to advocate against same-sex marriage and teach their beliefs. The assurance has been tested repeatedly. Masterpiece Cakeshop (2018) and 303 Creative (2023) illustrate the ongoing constitutional negotiation between Obergefell's liberty-and-equality framework and the First Amendment's free-exercise and free-speech guarantees.

**Fourth, the Dobbs question.** Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022), overruled Roe v. Wade and Planned Parenthood v. Casey on the ground that substantive due process does not protect rights not "deeply rooted in this Nation's history and tradition." Justice Thomas's concurrence in Dobbs explicitly called for reconsideration of Obergefell, Lawrence, and Griswold under the same logic. The Dobbs majority expressly distinguished Obergefell and did not overrule it, but the dissent (Breyer, Sotomayor, Kagan) argued that the doctrinal framework Dobbs adopted offers no stable basis for distinguishing. As of 2026, Obergefell remains the law of the land, and Congress codified some of its protections in the Respect for Marriage Act (2022), which requires federal and state recognition of marriages validly entered into where performed. The statutory floor limits the immediate practical consequences of any future reversal but does not restore the full constitutional protection Obergefell established.

Fifth, the cultural arc. Polling data traces the social change Obergefell reflected and accelerated. Gallup approval of same-sex marriage: 27% in 1996, 40% in 2008, 55% in 2014 (pre-decision), 61% in 2016, 71% in 2022. Obergefell did not create the majority; it recognized one that democratic processes were in the middle of producing. The contested question — central to the dissents — is whether the judicial recognition was faster than the democratic process warranted, or whether democratic processes would have produced the same result regardless. Different observers still answer that question differently.

Later citations

Sources

Full citations in sources/citation_index.md under Obergefell v. Hodges.