US Supreme Court decides in favour of marriage equality

Obergefell v Hodges, 576 U.S. ___ (2015) (26 June 2015)

The recent decision of the Supreme Court of the United States in Obergefell v Hodges is a landmark victory that activists have been working towards for over a decade. In a 5-4 judgment the Supreme Court held that the Fourteenth Amendment to the Constitution requires States of the United States to licence marriage equality.


In 2013, in United States v Windsor, 570 U.S. ___ (2013), the Supreme Court considered section 3 of the Defense of Marriage Act, which defined marriage as being between one man and one woman. This legislation meant couples living in US States that recognised marriage equality could be denied federal benefits. The Supreme Court held this Act was unconstitutional under the Fifth Amendment’s guarantee of equal protection.

The vast majority of United States Circuit Courts (intermediate federal appeal courts) applied United States v Windsor to declare that State laws that prohibited gay marriage were unconstitutional. However, 14 same-sex couples from Michigan, Kentucky, Ohio and Tennessee filed suits in Federal District Courts in their home States, claiming that their States violated their rights under the Fourteenth Amendment by prohibiting marriage equality. After succeeding in their Districts Courts, the Court of Appeal for the Six Circuit consolidated their cases and reversed the District Court decisions. The Supreme Court heard an appeal from this decision.


Under the Due Process Clause of the Fourteenth Amendment of the US Constitution, no State can “deprive any person of life, liberty, or property, without due process of law”. Writing for the Court, Justice Kennedy (with whom Justices Ginsburg, Breyer, Sotomayor and Kagan joined) held that the Fourteenth Amendment requires States to licence marriages between same-sex couples.

Interestingly, Kennedy also wrote the majority judgments in landmark LGBTI rights cases in Romer v Evans, 517 U.S. 620 (1996) (which held a state constitutional amendment preventing protected status based upon homosexuality or bisexuality was unconstitutional under the Fourteenth Amendment) and Lawrence v Texas, 539 U.S. 558 (2003) (which held that criminalisation of same-sex conduct also violated the Fourteenth Amendment).

The Supreme Court has previously held that the right to marry is protected by the Constitution. In Loving v Virginia, 388 U.S. 1. 12 (1967), the Supreme Court invalidated bans on interracial marriage, holding that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness”. Zablocki v Redhail, 434 U.S. 374 (1978) held that the law could not prohibit fathers who were behind on child support from marrying, while Turner v Safley, 482 U.S. 78 (1987) decided the right to marry was violated by regulations that limited the capacity of prison inmates to marry. While these cases concerned opposite sex couples, Justice Kennedy identified four principles and traditions that demonstrated why the right to marry should be extended to same-sex couples:

  1. A premise of the Supreme Court’s relevant precedents is that the right to marry is inherent in the concept of individual autonomy. This should apply to all people, regardless of their sexuality.
  2. A principle central to the Supreme Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Same-sex couples have the same right to enjoy intimate association.
  3. Protecting the right to marry safeguards children and families. In contrast, Justice Kennedy noted: “The marriage laws at issue here … harm and humiliate the children of same-sex couples”.
  4. The Supreme Court’s prior cases and America’s traditions make clear that marriage is a keystone of the American social order – it is demeaning to lock same-sex couples out of a central institution of American society.

Justice Kennedy also contended the right to marry was protected by the Fourteenth Amendment’s guarantee of the equal protection of the laws, holding that denying the right to marry to same-sex couples “abridges central precepts of equality”. Justice Kennedy concluded by stating that the petitioners “ask for equal dignity in the eyes of the law. The Constitution grants them that right”.

Notably, Justice Kennedy’s judgment was not joined by four members of the Court – Chief Justice Roberts and Justices Scalia, Thomas and Alito – all of whom wrote separate dissents. Justice Scalia’s dissent was especially scathing of the majority opinion: “The opinion is couched in a style that is as pretentious as its content is egotistic … Of course the opinion’s showy profundities are often profoundly incoherent”.

What does this mean for the United States?

While the Supreme Court held that the Fourteenth Amendment requires States to licence gay marriage, litigation continues regarding the compatibility of Obergefell v Hodges with the First Amendment of the Constitution, which prohibits the making of any law respecting an establishment of religion. Kentucky resident David Moore, and his partner of 17 years were denied a marriage licence by a County Clerk, on the basis that doing so would violate her religious beliefs. The American Civil Liberties Union has filed a law suit against Davis on behalf of two same-sex and different-sex couples who were denied marriage licenses. 

In addition, Mary Bonauto, the Civil Rights Project Director at Gay and Lesbian Advocates and Defenders, who co-argued the case for the petitioners in Obergefell v Hodges, has stated that the “the work goes on” noting the many other areas in which lesbian, gay, bisexual and transgender people face discrimination in American society. For example, 29 States have no laws that explicitly prohibit discrimination based on sexual orientation, and 32 States have none that do so based on gender identity.

What does this mean for Australia?

Unlike the US, Australia does not have a Constitutional Bill of Rights, nor even a legislative one. Marriage equality in Australia, accordingly is likely to only come through the legislature, not the courts. The High Court of Australia has clearly stated that the Marriage Act 1961 (Cth) conclusively defines marriage as being between a man and a woman, but also recognized that the Commonwealth Parliament has the power to pass laws for marriage equality.

The full text of the US Supreme Court’s decision can be found online here:

Jeremy Rich is a Law Graduate at Allens and a member of Allens’ National LGBTIQ Network, ALLin. David Brewster is a Partner at Allens and the co-chair of ALLin. Allens recently announced its public support for marriage equality.