UMass Law Professor Jeremiah Ho reacts to Supreme Court decision on marriage equality

"They say that June is historically the month of weddings. But since the 1970s and 1980s, it has also become the national month of pride fests and parades..."

They say that June is historically the month of weddings.  But since the 1970s and 1980s, it has also become the national month of pride fests and parades.  And thanks recently to a few Supreme Court Justices, June is now the month for landmark same-sex marriage decisions.  Obergefell v. Hodges now makes it three within the last three years. 

Today's favorable decision from the Supreme Court on marriage equality is historic to say the least.  Writing for the majority, Justice Kennedy completes another chapter in the Court's gay rights decisions and does so from his broad humanist perspective.  Although many believed that Chief Justice Roberts might have joined the majority's opinion to decide favorably for same-sex couples, the 5-4 decision with Justice Kennedy at the pen again gives continuity to addressing issues regarding human dignity in the context of gay rights.  The majority opinion fulfills the goals of state recognition of marriage for same-sex couples from two angles under the 14th Amendment of the U.S. Constitution--the amendment's Due Process and Equal Protection Clauses.  In this way, we see the Court being the most complete with the legal doctrine as far as recognizing the rights of same-sex couples on par with the rights of opposite-sex couples.  This doctrinal treatment is by the most thorough--and consequently, the most pro-gay--that we have seen from the Supreme Court and it builds on doctrinal developments from the previous  cases of Lawrence v. Texas and U.S. v. Windsor (both written by Justice Kennedy). 

In addition, the developments in the 14th Amendment today that allows for same-sex couples to marry or have their marriages recognized by state governments have been justified via the human dignity aspect of marriage discrimination.  We see this in the majority's description of marriage and how basic it is on a human level for couples (same-sex or not) to have their unions legally recognized if they choose to do so because such recognition not only affords legal rights and benefits but also effects how society treats those relationships.  This aspect is particularly highlighted by the Court in describing same-sex couples with children and family.  So today's opinion is important because it reaffirms how rights and benefits could be deprived if same-sex couples cannot be given the same marital status that opposite-sex couples can receive, but also contextualizes that deprivation or discrimination from human dignity aspects as well.  By extension, it is one important way in which the Court is recognizing LGBTQ people as members of society and not second-class citizens. 

The opinion does seem to have limitations in regards to whether sexual orientation is protected as a trait from discrimination on as high of a level as race or national origin.  Today's decision seems to be accomplishing a lot for same-sex couples nation-wide.  But it did not render the Equal Protection issue based on categorizing sexual orientation within the scrutiny standards.   Thus, there might be some constraints for the application of Obergefell in other legal issues that are forthcoming for LGBTQ rights advocates, such as anti-discrimination.  Still today's opinion is definitely one for the books.


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