Reflections on the 10th Anniversary of Obergefell v. Hodges – A Great Civil Rights Milestone that Could be Even Better
Today, is the tenth anniversary of Obergefell v. Hodges, the landmark Supreme Court decision striking down laws banning same-sex marriage. The ruling was a great victory for liberty and equality, and a striking example of how progress can be achieved by a combination of litigation and political action. The Court got the right result. But its reasoning should have been better. Instead of relying on a dubious mishmash of rationales, the Court would have done better to rule that laws banning same-sex marriage are unconstitutional because they discriminate on the basis of sex.
Obergefell was a great triumph for the civil rights of a long oppressed and despised minority. For decades, gays and lesbians had been discriminated against in a wide range of ways, and even subjected to criminal prosecution. Only with Lawrence v. Texas (2003) did the Supreme Court strike down anti-sodomy laws. I am old enough to remember widespread homophobic prejudice when I was growing up in the late 1980s and 1990s – not in a socially conservative area, but in an overwhelmingly liberal Boston suburb.
At the time of Obergefell, 37 states had same-sex marriage rights. But in 21 of them those rights depended on recent federal court decisions that would have been overturned had Obergefell come out the other way. Without Obergefell, many states would have continued to deny marriage equality for a long time to come, even up to the present day.
For gays and lesbians throughout much of the country, Obergefell was essential to ensuring they had secure marriage rights. In addition to the vastly important symbolism of this step towards equality, access to marriage enabled many thousands of same-sex couples to secure such practical benefits as adoption rights, inheritance rights, tax benefits, the ability to make medical decisions for sick or incapacitated partners, access to property rights reserved for married couples, and more. Most heterosexuals took these rights for granted, but gays and lesbians could not.
Obergefell was more than just a victory secured by lawyers making arguments in court. It was also the product of a longstanding civil rights movement. For decades, the gay rights movement had worked to influence public and elite opinion in favor of equality. Thanks to their efforts, public support for same-sex marriage rose from just 27% in 1996 to around 60% just before Obergefell was decided. At the same time, legal scholars and others advanced a variety of constitutional arguments for marriage equality which prevailed in several state supreme courts interpreting their state constitutions, and led to the invalidation of the federal Defense of Marriage Act in United States v. Windsor (2013), striking down a law that barred federal recognition of same-sex marriages performed in states where they were legal.
It took the combined force of shifts in public opinion and development in legal argument to make Obergefell possible. The former allowed the justices to take the step they did, confident that most of society would back their decision. Just a few months before Obergefell, Supreme Court Justice Ruth Bader Ginsburg openly stated that the shift in public attitudes had paved the way for such a ruling, whereas earlier she had feared the public would not a
Article from Reason.com
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