The United States Supreme Court Hears Oral Arguments Today on Challenges to Same Sex Marriage Bans

Attorney Rebecca Palmer is appearing on Fox News today speaking about same sex marriage bans and The Supreme Court case being heard today. The case Obergfell v. Hodges combines four challenges to same sex marriage bans from Ohio, Kentucky, Tennessee and Michigan.

The Court will determine whether the federal constitution requires all states to either license same-sex marriages or to recognize those marriages if they are performed elsewhere.

Since the Massachusetts Supreme Court determined that same sex couples have the right to marry in 2003, 36 states and the District of Columbia have followed suit.

The central issue is whether the right of same sex marriage is a fundamental right protected by the United States Constitution. If the Court determines that same sex marriage is a fundamental right, its difficult to imagine any circumstance under which the Court will uphold the same sex marriage bans. The most sweeping result would be that states banning same sex marriage would be compelled to issue marriage licenses to same sex couples. The intermediate result—states with the bans would have to recognize same sex marriages performed in states that allow them—will have the same practical effect. Same sex couples living in Ohio, Kentucky, Tennessee and Michigan would simply go to states in which they can obtain marriage licenses and then return home.

A fundamental right may not be restrained unless the government shows a compelling state interest to support the law. Here, the states supporting the ban have argued a state interest in supporting the traditional definition of marriage as being between one man and one woman. The states have also argued that their citizens voted for the ban, and the Court should not second guess the will of the people.

The problem with the “will of the people” argument is that the Constitution protects individuals from what the Court has called “tyranny by the majority.” What that means is that individual citizens cannot have their fundamental rights infringed in a discriminatory manner simply because more than 50% of the voters think that’s a good idea.

Loving v. Virginia, a 1967 Supreme Court case which struck down bans on inter-racial marriage, provides insight on where this Court will go. Prior to Loving, several states, including Virginia, banned people from different races from marrying. There, like here, interracial couples who were married in states that allowed interracial marriage would find that their marriage was not recognized if they moved to a state with a ban. There, like here, the opponents of interracial marriage argued that the Court should not disturb state laws enacted by the will of the people. There, like here, the opponents of interracial marriage cited then traditional definitions of marriage.

The Court, in a 9-0 decision, rejected Virginia’s arguments. The Court found that marriage was a fundamental right and that there was no compelling state interest in the ban of interracial marriages.

Courts considering same sex marriage bans have also rejected the state’s arguments that a compelling state interest is served by “preserving” traditional marriage. The Ninth Circuit found that the ban on same sex marriage actually undermined the benefits of marriage by depriving citizens of the benefits of marriage. Marriage, at its best, promotes stability, predictability and benefits for couples and families. The current state of the law, in which Mr. Obergfill’s Maryland marriage is not recognized in Ohio decreases stability, benefits and predictability.

Whether one personally agrees with same sex marriage or not is irrelevant for purposes of the US Constitution. If the Court finds that marriage is a fundamental right that should be afforded to same sex couples, then the bans are indefensible. This is why, for instance, the top law firms in the country have refused to enter appearances in cases defending the same sex marriage bans.