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The Hawkins Law Firm

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Arab, AL 35016

SCOTUS Recognizes Gay And Lesbian Right To Marry

In a 5-4 decision reached in Obergefell v. Hodges on June 26, 2015, the U.S. Supreme Court ruled that same-sex couples have a right to marry.  The Court based its decision on the U.S. Constitution, holding that the Fourteenth Amendment’s “fundamental right to marry” can no longer be denied because those wishing to marry are of the same sex. The decision is binding on every state, and may only be reversed by a formal amendment to the U.S. Constitution, or by future Supreme Court precedent.

The decision nullified bans on same-sex marriage as well as bans on official recognition of such marriages within a state with a previous ban that was performed outside that state.   According to the Court, both prohibitions violate the Fourteenth Amendment’s guarantees of due process and equal protection. The Court acknowledged that the debate over the social and moral dimensions of marriage will go on, but refused to continue to allow the debate over marriage to be determined by society at the state level. The Court assured debaters that they will have the protection of First Amendment free speech rights, but clearly confirmed that the Constitution will not allow prohibitions on same-sex marriage, stressing that gay and lesbian couples will be able to marry “on the same terms as accorded to couples of the opposite sex.”

Much of the ongoing debate will focus on claims that same-sex marriage will intrude on the religious rights of those whose faith defines marriage as between a man and a woman.  A number of state legislatures have already passed measures allowing businesses and others a legal right not to accommodate same-sex couples.

Justice Anthony M. Kennedy read his opinion for the majority. Justice Kennedy has been the author of each of the Court’s most recent rulings advancing gay rights. His twenty-eight-page opinion included many of the themes of individual liberty that have come to identify his views on the rights of gays, lesbians, and transgender people.  Much of the rhetoric echoed his opinion two years ago, striking down a key part of the federal Defense of Marriage Act. Once again, Justice Kennedy did not spell out the constitutional test he was applying to find gay equality.  He simply discussed a series of court precedents, together with his own views of notions of liberty.

Chief Justice Roberts also read his lead dissenting opinion, chastising the majority for judicial activism. The Chief Justice stated that the majority’s decision had nothing to do with the Constitution or the rule of law.

The Kennedy opinion was supported in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Each of the dissenters, Justices John G. Roberts, Jr., Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas, wrote a separate opinion.

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