Does the Fourteenth Amendment require a State to license a marriage between two people of the same sex, and to recognize a same-sex marriage lawfully licensed and performed in another State?

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners were 14 same-sex couples and two men whose same-sex partners were deceased, and they sued state officials responsible for enforcing those laws. James Obergefell and John Arthur, who was dying of ALS, married in Maryland inside a medical transport plane on the tarmac; Ohio refused to list Obergefell as surviving spouse on Arthur's death certificate. April DeBoer and Jayne Rowse, nurses in Michigan, adopted three children, but Michigan permits only single individuals or opposite-sex married couples to adopt, so each child had only one legal parent. Army Reserve Sergeant Ijpe DeKoe married Thomas Kostura in New York before deploying to Afghanistan, but Tennessee refused to recognize their marriage once they resided there. The petitioners claimed the States' refusal to license same-sex marriages or recognize lawful out-of-state same-sex marriages violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The petitioners filed suits in United States District Courts in their home States of Michigan, Kentucky, Ohio, and Tennessee. Each District Court ruled in favor of the petitioners. The state officials appealed to the United States Court of Appeals for the Sixth Circuit, which consolidated the cases and reversed the District Courts' judgments in DeBoer v. Snyder, 772 F.3d 388 (2014). The Sixth Circuit held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State. The Supreme Court granted certiorari, limited to two questions: whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex (from the Michigan and Kentucky cases), and whether it requires a State to recognize a same-sex marriage licensed and performed in another State (from the Ohio, Tennessee, and Kentucky cases).

(Kennedy, J.)

Yes. The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a same-sex marriage lawfully licensed and performed out of State.

The fundamental liberties protected by the Due Process Clause extend to personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. Courts must exercise reasoned judgment in identifying fundamental interests; history and tradition guide that inquiry but do not set its outer boundaries. The right to marry has long been recognized as fundamental. Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987). The Glucksberg demand for a narrow, historically specific description of a right is inconsistent with how marriage cases have been decided; Loving did not ask about a right to interracial marriage, but about the right to marry in its comprehensive sense.

Four principles show why the reasons marriage is fundamental apply equally to same-sex couples. First, the right to personal choice regarding marriage is inherent in individual autonomy. Second, marriage supports a two-person union unlike any other in its importance to the committed individuals, an intimate association protected in Griswold v. Connecticut, 381 U.S. 479 (1965), and extended to same-sex couples in Lawrence v. Texas, 539 U.S. 558 (2003). Third, marriage safeguards children and families; excluding same-sex couples harms and humiliates their children, and the right is not conditioned on the capacity to procreate. Fourth, marriage is a keystone of the social order, and exclusion denies same-sex couples the constellation of benefits States attach to marriage and demeans them.

The Equal Protection Clause also supports the result. Due Process and Equal Protection are interlocking guarantees, as shown in Loving, Zablocki, and Lawrence. The challenged laws burden liberty and abridge central precepts of equality, denying same-sex couples benefits and a fundamental right and serving to disrespect and subordinate gays and lesbians.

Baker v. Nelson, 409 U.S. 810 (1972), is overruled. Individuals harmed by unconstitutional laws need not await legislative action, because fundamental rights may not be submitted to a vote. The argument that same-sex marriage will harm opposite-sex marriage rests on a counterintuitive view of couples' decisions about marriage and parenthood. The First Amendment protects religious organizations and believers in teaching their views. Because same-sex couples may now marry in all States, no lawful basis exists to refuse recognition of a lawful same-sex marriage performed in another State. The Sixth Circuit's judgment is reversed.

Dissent (Roberts, C.J., joined by Scalia and Thomas, JJ.) The Court is not a legislature, and the Constitution leaves the definition of marriage to the people of each State. Marriage has meant the union of a man and a woman across all civilizations, rooted in the need to ensure children are raised by committed parents. The Due Process Clause protects only rights deeply rooted in history and tradition under Glucksberg, and the majority abandons that discipline and revives the unprincipled judicial policymaking of Lochner v. New York. The right to marry cases involved barriers to marriage as traditionally defined, not a right to change its definition. The majority's reasoning offers no principled basis to preserve the two-person limit on marriage. The Equal Protection Clause is not violated because the traditional definition is rationally related to legitimate state interests. The decision removes the issue from democratic debate, short-circuits accommodations for religious liberty, and rests on five lawyers' will rather than law.

Dissent (Scalia, J., joined by Thomas, J.) The decision is a threat to American democracy because nine unelected lawyers, unrepresentative of the country, impose their views on 320 million people and deprive the people of the freedom to govern themselves. When the Fourteenth Amendment was ratified, every State limited marriage to one man and one woman, which resolves the case. The majority's claim that the Amendment protects whatever rights its "reasoned judgment" favors is a naked claim to super-legislative power. The opinion's reasoning is pretentious and incoherent, resembling a fortune cookie rather than law.

Dissent (Thomas, J., joined by Scalia, J.) Substantive due process is a dangerous fiction, because the Due Process Clause guarantees only the process due before deprivation of life, liberty, or property. Liberty, as understood at the founding, means freedom from government action such as physical restraint, not entitlement to government benefits and recognition. Petitioners have not been deprived of liberty; they remain free to live together, hold ceremonies, and raise children. Dignity is innate and cannot be conferred or removed by government. The decision also threatens religious liberty.

Dissent (Alito, J., joined by Scalia and Thomas, JJ.) The Constitution says nothing about same-sex marriage, and the right is not deeply rooted in the Nation's history and tradition under Glucksberg. The majority's reasoning rests on a modern understanding of marriage focused on adult emotional fulfillment, while States defending the traditional view rely on marriage's link to procreation and child-rearing. The decision usurps the people's right to decide, will be used to vilify Americans who adhere to traditional views, and shows the Court's willingness to impose its own vision of liberty. The majority answers that those who hold traditional views are not disparaged and that the First Amendment protects their right to teach and advocate them.