The US Supreme Court held on Friday that same-sex marriage is both entitled to full recognition and also an issue of equal protection. In the most sweeping ruling possible, the Court decided, by 5 votes to 4, that the Constitution guarantees the right to marriage, including same-sex marriage. Justice Anthony Kennedy wrote the majority opinion, in which Justices Ginsburg, Breyer, Kagan, and Sotomayor joined. Justices Roberts, Scalia, Alito, and Thomas dissented.
The case was Obergefell, et al. v. Hodges, et al., though companion cases are also impacted by this decision. These cases were brought by same sex couples in Kentucky, Ohio, Tennessee and Michigan – all states where same-sex marriage was illegal – who had been married in states where same-sex marriage was legal. The plaintiffs argued that marriage was their Constitutional right, and that they were entitled to equal protection as well as full recognition by other states. The Court agreed, and held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Considering the issue of full recognition, Kennedy stated that the bans imposed undue hardship upon couples married in one state but not recognized in another. He noted such issues as potential hospitalization and the fact that a spouse’s rights in one state would be in question in another. Crucially, he also stated that allowing same-sex marriage created “no harm to third parties.” Those who oppose same-sex marriage on religious or moral grounds are free to continue to do so, but their objection will no longer shape the law of the land.
Perhaps the most powerful passage of Kennedy’s opinion was found within the closing paragraph, in which he said: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
However, the decision was a close one, with all four Justices dissenting. Chief Justice Roberts wrote “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision… But do not celebrate the Constitution. It had nothing to do with it.” His dissent was as visceral as Kennedy’s opinion, noting the huge weight of the ruling and adding, “Who do we think we are?” He was joined in his dissent by Justices Alito, Thomas, and Scalia.
Justice Scalia, joining in Roberts dissent but writing separately (as did Alito and Thomas), had scathing criticism for the Court’s majority. He took particular affront to the idea that “expression, intimacy and spirituality” were rights. He asked: “Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms?”
At the height of his pique he took aim at Justice Kennedy and the majority, stating “[t]he opinion is couched in a style that is as pretentious as its content is egotistic…” and “I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.” It can only be assumed that there could be a chill in the halls of the Court this weekend.
Perhaps others were less surprised by the outcome. The high court had passed on this issue as recently as last October, and most famously in 2013 with regard to the proposed review of California’s Proposition 8 banning gay marriage in that state. However, the same day the Court found that it lacked the procedural authority to rule on Proposition 8 it decided a case that further propelled same-sex marriage proponents, United States v. Windsor. That decision struck down the part of the Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.
In the interim a growing majority of states had legalized same sex marriage. Prior to the Court’s decision 36 states and the District of Columbia allowed same-sex marriage. Even so, it remained to be seen whether the nation’s more conservative states would make that same decision until it was, ultimately, taken out of their hands. Even so, with some 70 percent of US citizens living in states that recognized same-sex marriage there were considerable complications with regards to recognition. Perhaps no one – besides same-sex married couples and their families – felt this more acutely than employers.
For employers doing business in states that had previously prohibited same-sex marriage, this decision will present no shortage of questions. It will also, finally, provide some answers. It is never easy for a business to be left in a legal limbo where it can only contemplate what will happen going forward. For employers doing business in multiple states this will allow for a more consistent application of policies than was previously possible while for some others it may present an entirely new set of questions.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.