Supreme Court Says Constitution Requires States To License Same-Sex Marriages

In another blockbuster 5-4 ruling authored by Justice Kennedy, in Obergefell v. Hodges, 576 U.S. ___. ____ (2015), the U.S. Supreme Court has held that the Fourteenth Amendment to the Constitution requires a state to license a marriage between two people of the same sex and to recognize same-sex marriages validly performed out of state.

Majority Finds Same-Sex Marriage a Constitutional Right that has Evolved Over Time

Justice Kennedy begins the majority opinion − joined by Justices Breyer, Kagan, Sotomayor and Ginsburg − by discussing the history of marriage and changes in various aspects of the structure of marriage that have "evolved over time."

The opinion observes that changes have also occurred in the nation's attitudes toward gays and lesbians, including the evolution of gay rights legislation and court decisions. The Supreme Court's decisions show this evolution. In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court held unconstitutional a state law criminalizing homosexual conduct. Subsequently, in United States v. Windsor, 570 U.S. __, 2013 U.S. LEXIS 4921 (2013), a 5-4 decision written by Justice Kennedy, held that Section 3 of the Defense of Marriage Act "is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

The majority notes that states are divided on the issue of same-sex marriage with 17 states recognizing same-sex marriage by virtue of state legislation or judicial decisions.

In determining whether marriage is a fundamental constitutional right of same-sex couples protected under the due process clause of the Fourteenth Amendment, the Supreme Court stated that notions of fundamental rights also evolve over time:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed. Obergefell v. Hodges, 576 U.S. ___, ___ (2015) (slip op. at p. 11)

The Supreme Court noted that the constitutional right to marry was recognized in Loving v. Virginia,388 U.S. 1 (1967), which invalidated bans on interracial marriage and Turner v. Sofley, 482 U.S. 78 (1987), which held that prisoners could not be denied the right to marry. In the majority's view, four principles...