Mon | Sep 25, 2017

Shelly Ann McGregor: Same-sex marriages get the nod across the US

Published:Monday | July 6, 2015 | 7:00 AM

The impact of the decision of the United States Supreme Court in the case of Obergefell et al v Hodges, director, Ohio Department of Health, et al on June 26, 2015 gives same-sex couples the right to marry in any state in the US, is being compared to the famous decision in 1973 on abortion rights in Roe v Wade.

In Jim Obergefell's case, the petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are officials from the states of Michigan, Kentucky, Ohio, and Tennessee. These states have laws that define marriage as a union between one man and one woman.

All of the petitioners succeeded in their claims before the District Court in the relevant state that the law violated their right under the 14th Amendment, to marry or have their marriages that were lawfully performed in another state, given full recognition. The respondents appealed the decisions to the US Court of Appeals for the Sixth Circuit and won. The petitioners appealed to the US Supreme Court to quash the decision and it is that petition that succeeded by a majority of 5:4 on June 26.

ALS diagnosis

Obergefell, and his partner of more than 20 years, Arthur, decided to marry two years ago after Arthur was diagnosed with amyotrophic lateral sclerosis (ALS). In order to marry before Arthur died, they travelled on a medical transport plane from Ohio to Maryland (where same-sex marriages are legal), and got married inside that plane on the tarmac at an airport in Baltimore.

Arthur died three months later, and Ohio law prevented Obergefell from being listed as Arthur's surviving spouse on his death certificate.

Two narrow issues were argued before the Supreme Court:

1 Whether the 14th Amendment requires a state to license a marriage between two people of the same sex.

2 Whether the amendment requires a state to recognise a same-sex marriage licensed and performed in a state which grants that right.

Both issues were resolved in favour of the petitioners, and Justice Kennedy, who delivered the opinion of the Court:

"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. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex."

The basis of the court's ruling is that "the right to marry is protected by the Constitution". The premise is that, "fundamental liberties protected by the 14th Amendment's due process clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs ... ."

Four principles and traditions were identified to demonstrate the reason marriage is a fundamental right:

1 The right to personal choice regarding marriage is inherent in the concept of individual autonomy.

2 The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

3 It safeguards children and families and thus draws meaning from related rights of child-rearing, procreation, and education.

4 Marriage is a keystone of the nation's social order.

Among the factors that influenced the court's ruling was the fact that some states already recognise same-sex marriages. What that means is that couples, who are legally married in one state, could drive to a neighbouring community only to have that valid marriage denied. For that, and other reasons, the court held that same-sex couples may exercise the fundamental right to marry in all states, and that there is no lawful basis for a state to refuse to recognise a lawful same-sex marriage performed in another state on the ground of its same-sex character.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com.