Obergefell v Hodges 2015

Obergefell v. Hodges,(2015) is a landmark civil rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The 5–4 ruling requires all fifty states, and the District of Columbia to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities

The case was brought by James Obergefell, who had married John Arthur in Maryland in 2013. But their state of residence, Ohio, would not recognise the marriage. Arthur was terminally ill, and when Obergefell asked to be named as the surviving spouse on the death certificate, the state authorities in Ohio refused. Obergefell then filed in federal court, claiming an infringement of the Fourteenth Amendment by the state’s ban on same-sex marriage.

This case illustrates the difference between strict and loose constructionists. In the view of the four conservative dissenting justices, this was an issue that should have been left to the states to decide. ‘This Supreme Court is not a legislature,’ wrote Chief Justice Roberts for the minority

But the majority took the loose constructionist position. To them, the ‘life, liberty and property’ rights of the Fourteenth Amendment ‘extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs’. This is an example of the loose constructionist’s ‘reading things into’ the words of the Constitution. The word ‘dignity’ appeared nine times in Justice Kennedy’s majority opinion, yet it never appears in the Constitution itself.

Chief Justice John Roberts described his objection to the decision in terms of his objection to judicial activism

'our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition...Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process — to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will [make] a dramatic social change that is much more difficult to accept.'