The Legalities Shaping Same-Sex Marriage

The issue of marriage has long been debated. For centuries, religion and tradition have been at the center of the debate. On one side, there is the view that assumes marriage should be between one man and one woman. In contrast, the opposing view is that marriage should be legally allowed between same-sex couples of any gender-identity. With recent shifts around the world towards the former view in our ever-progressing society, this debate surrounding same-sex marriage, and the legalities than lie within, has only become more prevalent. As a whole, this change, accompanied by legal and political developments for same-sex couples, has resulted in same-sex marriage becoming more common, accepted, and legal. 

This shift can be somewhat attributed to the shifting definitions of family and marriage throughout the world. In the past, particularly in the United States, the default family included a heterosexual mother and father, accompanied by a few heterosexual children. Over time, that definition and norm has greatly weakened. Modern families now include many more diverse structures that have redefined the “normal” family. Families now come in a vast variety of forms, not all of which are biologically based, such as same-sex couples, single-parents, stepfamilies, fictive-kin families, chosen families, cohabiting couples, multicultural families, and more.1

Along with changes to familial structures themselves, our understanding of the love associated with the bond of marriage has also grown. As the people of the world continue to change and broaden their perspectives, the boundaries of love have been extended to focus not only on love between a man and a woman, but also between many couples and people of the same sex. 

Despite the increasing number of loving same-sex relationships, much of society is still quite traditional in its views of this new concept. The issue of “same-sex marriage” is debated in countries all over the world today because of its significance in people’s personal lives, in religion, and within the law. While same sex-marriage may be becoming more widely accepted in certain countries around the world, this is not the case across the globe. There are still countries and locations where the legalities shaping same-sex marriage are framed in a tradition that is far harder to change than others. Combined, all of these factors make the debate surrounding same-sex marriage, and the legalities that go along with it, as complex as ever. 

Throughout the following article, we will primarily focus on the legalities of same-sex marriage in the United States of America. During this portion of the article, various landmark court cases will be outlined where the issue at hand, end result, and why the court’s decision mattered for each case. 

Same-Sex Marriage Around the Globe

Currently, same-sex marriage is legal in 29 countries.As there are around 200 countries globally, only 29 countries having legalized same-sex marriage proves that there is still an incredible number of places that are not welcoming of same-sex marriages. 

These countries that have legalized same-sex marriage include: Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay.Of these countries, the Netherlands was the first to legalize same-sex marriage in 2000, followed by Belgium in 2003 as the second country.3 In some countries, such as Mexico, same-sex marriage is legal in some jurisdictions, but not others. Most recently, since 2019, Costa Rica, Austria, Taiwan, and Ecuador have legalized same-sex marriage. Taiwan is especially notable as it was the first Asian country to legalize same-sex marriage.2

In other countries across the world, sexual activity of any sort is deemed illegal. In countries like Iran, Afghanistan, Sudan, Yemen, Saudi Arabia, and others, homosexual activity is punishable by death.For many other countries, such as Egypt or Iraq, homosexual activity may not be punishable by death, but the acts are still illegal.For these countries, the legalization of same-sex marriage is likely to be much further in the future since the acceptance of homosexuality is so limited. 

Each and every country around the world has specific laws, processes, and views that can greatly impact the journey towards legalizing same-sex marriage. For example, some countries have legalized same-sex marriage through legislation while with others, such as the United States, legalization has come through court decisions (Obergefell v. Hodges). 

As a whole, the world has a great deal of progress that still must be made in order for same-sex couples to be legally allowed to marry across the world. This may be an ideal that takes centuries longer to see fully realized. While this may take time, as the world moves further into the 21st century, more and more countries are likely to legalize same-sex marriage. The trends of the past few decades are likely to continue into the future. 

Overview of Same-Sex Marriage U.S.

The LGBTQIA+ community has fought for a variety of rights in the US, with marriage being one piece of the larger picture. This fight for marriage equality has often been seen within the wider context of the LGBTQ rights movement in the US as homosexuality has been taboo in the US throughout history.

In the United States, the modern definition of the family is continually becoming more inclusive of a wide array of diverse familial structures, including households with single mothers, single fathers, and grandparents as the primary caretaker of their grandchildren. Along with greater inclusivity, there has also been an increase in the presence of more diverse family structures.However, some people still believe that lesbian and gay couples are incapable of having a family. Along with this view, some believe that even when same-sex couples do have families, they are inherently dysfunctional, immoral, and wrong. 

Research has widely proven that this is not the case. Families led by same-sex couples have been shown to be just as effective at raising happy and healthy children as families led by heterosexual couples.6 Research has also shown that when compared to the children of heterosexual couples, the children of same-sex couples exhibited little to no significant differences in terms of their well-being.6

It is due to these prejudices, not credible science or research, that same-sex couples have had to fight to attain societal recognition of their varied family structures. 

Context of Same-Sex Marriage in the U.S.

To most historians, the United States is known as a socially progressive world power, but its views of same-sex marriage have been slow to change. Similar democratic nations such as France and the United Kingdom were much quicker to legally recognize gay marriage.

The debate surrounding the legalities of same-sex marriage in the United States is especially complicated; each U.S. state can determine its own set of rights for its citizens. There is a difference between federal and state legislation, so if a law has been passed at only the state level, but not at the federal level, the laws can greatly differ between states. 

In 2004, the state of Massachusetts became the first in the U.S. to grant same-sex couples the right to marry.7 This controversial piece of legislation was considered a milestone victory for people seeking a same-sex marriage and encouraged other states to follow suit.

Up until 2015, this was the case surrounding same-sex marriage as it was left up to each individual state to decide how same-sex marriage would be viewed. Same-sex marriage licenses could be legally only be issued in 37 of the 50 states.7 In the remaining 13 states, couples had to be of the opposite sex in order for their marriage to be legally recognized. This structure caused specific issues and inconsistencies with same-sex marriage in the United States because a couple could be married in one state, but as soon as they crossed the line into another state, their marriage was no longer legally recognized. This issue became even more complex as there were many circumstances in which the lack of a marriage being recognized had dire consequences. 

For example, imagine a scenario in which a same-sex couples were visiting a state where their marriage was not legally recognized. If one partner was in an accident which resulted in them being in the hospital, their partner would not have the legal ability to make decisions about their partner’s health. They would lose the legal abilities that they have in states where their marriage was legally recognized. Issues like these have hindered the ability of same-sex couples to feel that their rights were being protected nationwide. 

Even though some states did not allow same-sex marriages, many companies, such as Exon Mobile and Walmart, adopted policies accepting same-sex relationships. Such policies permitted fair housing regulations and granted traditional marital benefits such as insurance coverage to same-sex partners.

Some cities even created a “domestic partnership” category for both gay and heterosexual couples who lived together unmarried. Such laws provided some of the same legal rights for these couples as for married couples, such as health insurance coverage for the partner, and family leave to care for the partner.

In addition to the issues described above, the issue of religion is especially relevant surrounding the debate of marriage equality in the U.S. There have been multiple documented instances of various forms of discrimination against same-sex couples in the US. One more recent example occurred when a Colorado bakery refused to make a wedding cake for a gay couple planning to get married in 2012.This issue was particularly complicated, since the owner of the bakery, Jack C. Phillips, claimed that their religion did not align with the belief that same-sex marriage is acceptable. 

The couple, Craig and Mullins, filed discrimination charges against the bakery with the Colorado Civil Rights Division. Craig and Mullins claimed that they were discriminated based on their sexual orientation, which directly goes against the Colorado Anti-Discrimination Act.

This specific case was widely publicized and made it to the Supreme Court of the United States with Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission. In a 7-2 decision, the court sided with Masterpiece Cakeshop. This decision essentially stated that while gay and lesbian individuals in the United States are afforded civil liberties, the baker was within their rights to deny service to the couple. In other words, the religious objection to same-sex marriage by the bakery was protected by the US Constitution.  

This case is one of many that illuminates the intricate complexities that shape the legalities of same-sex marriage in the United States. Conflicting views surrounding religious and philosophical freedoms and civil liberties often come head-to-head in cases such Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission. Each individual’s interpretation of their rights in America also cause discrepancies across the country that lead to debates that often end up reaching the Supreme Court. 

Timeline of the Fight for Same-Sex Marriage

The fight for same-sex marriage began in the early 1970s, when lesbian and gay couples began applying for marriage licenses and taking other steps to legally bind their relationship. Yet the majority of these efforts were rejected both socially and in court.

Although there were still groups seeking to make marriage available to gays and lesbians in American society, by the mid-1980s, the emphasis for the opportunity to marry changed to seeking “domestic partnership.” With the start of the 21st century, the movement for marriage equality for same-sex partners was renewed.

In the last few years before same-sex marriage became legal, couples all over the Unites States applied for marriage licenses and proceeded to sue their states when their requests were denied. Some people decided to hold their own private ceremonies sanctioned by their friends, families and spiritual communities. However, these private ceremonies lacked legal benefit and were not recognized by the state.

On June 26, 2015, the ruling on Obergefell v. Hodges struck down the Defense of Marriage Act (DOMA), making it mandatory for all 50 states to recognize same-sex marriages as valid.7 This was heralded as a major win in the LGBTQ+ community and in the broader context of the US.

Today, officials in all states are required to issue marriage licenses to same-sex couples, regardless of their personal or religious beliefs. Though this is the case, in many states, such as Kentucky, there have been struggles to enforce the new ruling because of the religious and/or anti-gay sentiments of some of the state officials. 

Key U.S. Supreme Court Cases in this Timeline

Each of the following legal cases ended up reaching the US Supreme Court and demonstrates the vast progress that has been made towards marriage equality in recent years. For each case below, context and background will be provided first before the specific outcome and impact of each case will be discussed. 

1. Defense of Marriage Act (DOMA)

Context:

In 1996, U.S. President Bill Clinton signed the “Defense of Marriage Act” (DOMA) into law.7 This law served as a way to clarify that states had no obligation to legally allow same-sex marriage.22 On a federal level, the law stated that marriage is to only be between one man and one woman. However, it preserved the power of the states to create their own laws on same-sex marriage. Under DOMA, benefits provided to heterosexual couples were off limits to same-sex couples. Not only that, the new law also proved to be problematic for legally wedded gay and lesbian couples.1

One year later, in 1997, a vast majority of US states had enacted outright bans on same-sex marriage. See the following map to see which states had statutory bans on same-sex marriage.10

One such example is New York residents Edith Windsor and Thea Spyer, who in 2007 were legally married in Ontario, Canada. Sadly, Spyer passed away in 2009 and left her estate to her wife, Edith. However, when Windsor attempted to claim the federal estate tax exemption for surviving spouses, she was barred. According to DOMA the term, “spouse” can only be applied to member of a marriage between and male and a female. Consequently, Windsor was obligated to pay for over $360,000 in estate taxes. However, Windsor was able to fight the law all the way to the Supreme Court. 

Main Issue:

Is the Defense of Marriage Act (DOMA), which defines marriage as only being between a man and woman, unconstitutional? 

End Result:

Finally, on June 26, 2013, the Supreme Court declared in the case of United States v. Windsor that Section 3 of the Defense of Marriage Act is unconstitutional, allowing same-sex couples to share federal benefits as a heterosexual couple.11 The court ended up siding with Windsor in the 5-4 decision. Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan all fell in agreement with the decision while justices Roberts, Scalia, Thomas and Alito all dissented.12

The majority opinion, written by Justice Kennedy, summarized the majority’s opinion that DOMA simply denied same-sex couples the same rights that many other couples had when it came to marriage. DOMA put same-sex couples at a disadvantaged stage, reinforced by stigma, that did not provide them equal protection under the law. This lack of equal protection directly goes against those provided by the 5th amendment of the US constitution resulting in DOMA being declared unconstitutional.12

Justice Kennedy stated that “by seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” This essentially meant that DOMA deprived citizens of their inalienable rights and violated the constitution.13

Also in the words of Justice Kennedy, “The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”14

The dissenting opinions to US v. Windsor expressed a differing ideal. The justices seemed to emphasize that they believed the court was acting outside of the bounds of their power as unelected justices by making a decision that overturned a law created in the legislative branch. This thinking is also tied to a belief that the institution of marriage is too enriched in tradition to risk changing. 

In the words of Justice Scalia, “What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility…the family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage — for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage — have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.” 14

Impact of this Decision:

The Supreme Court’s decision to declare DOMA unconstitutional was a major milestone in the fight for same-sex marriage. This decision paved the way for future landmark decisions in cases such as Obergefell v. Hodges in 2015. 

2. Proposition 8

Context:

California, commonly seen by the American public as one of the nation’s most progressive states, has repeatedly been in the spotlight for controversy regarding same-sex marriage. Unlike many other states, California’s constitution never specified a marriage as between one male and one female. In 2000, state senators attempted to change the language of the constitution through a ballot initiative.

This ballot initiative, known as Proposition 22, deemed that marriage was the union between one man and one woman. In the presidential election of 2000, the proposition was successfully ratified with a majority vote of 61.4%. 

Those open to legalizing same sex-marriage stated that Proposition 22 violated the California State Constitution, which reads that “any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as the laws that discriminate by race or gender.”

However, in May 2008, the California State Supreme Court ruled to legalize marriage between two people of the same sex, repealing Proposition 22. Opponents of same-sex marriage quickly drew up a proposition for the November 2008 ballot, Proposition 8.15

The proposition would change the language of the California State Constitution on the issue of marriage, making the clause much more specific and less open to interpretation. It would redefine the institution of marriage by re-writing the California Constitution to read that only marriage between a man and a woman is valid and recognized in California.16

A “yes” vote on Proposition 8 meant keeping marriage exclusively between heterosexual couples, whereas a vote of “no” affirmed homosexual rights to legally marry alongside heterosexual couples.

Proposition 8 passed on November 4, 2008 with 52.3% of voters supporting the measure, effectively banning same-sex marriage in California.15 While the proposition did pass, the 18,000 same-sex marriages that occurred before the passing of Proposition 8 did remain legitimate.

Multiple lawsuits were filed soon afterwards based on the debated constitutionality of the proposition. On May 25, 2009, in the case of Strauss v. Horton, the California Supreme Court ruled that Proposition 8 was constitutional. The courts stated that same-sex marriage was not a matter of equal protection under the law since civil unions offer same-sex couples the same rights as married couples.16

In the words of the court, “Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Casessupra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.”17

Following the California State Supreme Court decision to overturn “the people’s vote” against same-sex marriage, there was a public uproar from voters who felt affronted. Advocates of the proposition argued that it would “restore the definition of marriage” to the traditional union of one man and one woman.16

Those in favor of same-sex marriage fought against the claims of anti-gay advocates, arguing that the United States of America was founded on the principle that all people are created equally. In their view, by enacting Proposition 8, same-sex couples are denied a freedom that other citizens benefit from. These advocates also draw upon California’s constitutional clause on equal protection under the law for all, regardless of race or gender.

The underlying argument for those opposing the ratification of Proposition 8 was that all groups, no matter their sexual orientation, should be seen equally under the same laws and that no group in the U.S. should be denied the fundamental rights that are stated in both the state and national constitutions.16

Things started to change on August 4, 2010, Chief California district judge Vaughn Walker struck down Proposition 8, deeming the piece of legislation unconstitutional. In Walker’s 136-page decision, he stated that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”16

Proponents of Proposition 8 were unable to justify why gay and lesbian couples should be denied the right to marry. Thus, Walker ruled that the ban on marriage had no legal basis and unfairly targeted gay and lesbian couples. Prop 8 supporters were outraged and argued that Walker’s sexual orientation (who was openly gay) was a conflict of interest.

Unfortunately, a separate hearing attached a stay order to his ruling, meaning that same-sex marriage would not resume in California during the appeal to the Ninth Circuit of Appeals (a federal court with appellate jurisdiction over district courts). In case that the higher courts would overturn his rule, Walker did not want more gay marriages to take place.

As expected, supporters of the marriage ban successfully appealed to the Ninth Circuit. On February 7, 2012, the Ninth Circuit upheld district judge Walker’s decision. Ninth Circuit Judge Reinhardt believed that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”15

Reinhardt stated that Prop 8’s sole purpose was to discriminate against Californian gay and lesbian couples.15 Furthermore, the judge preserved the stay order preventing same-sex marriage from resuming in California while proponents appealed to the Supreme Court. 

On December 7, 2012, in the case Hollingsworth v. Perry, the U.S. Supreme court agreed to hear the arguments for and against Proposition 8. In the case, a gay and lesbian couple sued California state officials claiming that Proposition 8 violated their 14th amendment rights to equal protection under the law.18 The original state officials in the lawsuit decided that they could no longer defend and argue for Proposition 8. As a result, the official proponents of Proposition 8, or its petitioners, agreed to defend the measure instead in court.18

Main Issue:

Is a law stating that marriage can only be between a man and a woman unconstitutional since it violates the equal protection clause of the 14th Amendment?18 As well, the case examined whether the group of Prop. 8 petitioners, not named in the original suit against the California state officials, had any legal basis under Article III of the US Constitution to defend the Proposition in this case. 18

End Result:

Finally, on June 26, 2013, the US Supreme Court declined to rule on Proposition 8, in turn allowing same-sex marriage to resume in California.18 In a split 5-4 vote, the Justices stated that in the case of Hollingsworth V. Perry, Proposition 8’s petitioners had no legal standing or constitutional authority to defend the law in federal courts.15 The US Supreme Court decided to not truly make a decision with this case, but instead to defer the decision back to the state of California since they did not believe that the petitioners had any legal standing. Deferring back to California’s decision reaffirmed that Proposition 8 was unconstitutional. This essentially meant that because proponents of Proposition 8 were not affected by the decision of whether gay couples could legally be wed, they did not have ground to decide the matter. 

In the 2013 US Supreme Court case, Hollingsworth V. Perry, Chief Justice Robert’s delivered the majority opinion: 

In his words, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here. Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”19

Impact of this Decision:

This decision, a massive victory for same-sex marriage advocates in California, allowed same-sex couples throughout California to legally marry.  

3. Obergefell v. Hodges

Context:

Although the overturn of Proposition 8 was seen as a huge victory for LGBT advocates in California, LGBT groups in other states were left dissatisfied. The following is a map that showed how many states had legalized gay marriage as of the court’s decision around Hollingsworth v. Perry in 2013. 

Many people in other states wished for the same rights granted to those in California. In the next two years, people all over the country sued for the right to marry and for the right for their marriages to be recognized by the states.

By October 2014, four of the thirteen federal appellate courts (the 10th, 4th, 7th, and 9th) had made decisions upholding the freedom to marry.7 This changed in November 2014 when the Sixth Circuit reversed six pro-same-sex marriage lower court rulings. 

Members of the movement were shocked, vowing to bring the decision to the Supreme Court.

In January of 2015, the US Supreme Court decided to review these cases (shortened to Obergefell v. Hodges for ease of speech) to determine whether the ruling by the Sixth Circuit was constitutional.In April of 2015, huge crowds gathered in Washington DC to show their support for same-sex marriage as the US Supreme Court heard arguments on the freedom to marry in Kentucky, Tennessee, Ohio, and Michigan.

According to a Williams Institute poll (released in April 2015), there is a correlation between the legal freedom to marry and the increase of support for same-sex couples to marry.7 That is, more people begin to support gay marriage as bans upon it are lifted by states all over the country. This statistic boded extremely well for supporters of same-sex marriage eagerly awaiting the ruling by the Supreme Court.

Finally, on June 26, 2015, the United States Supreme Court passed down its decision to rule in favor of the right to marry, officially striking down DOMA and the marriage bans in the remaining 13 states.20 The landmark decision was greeted by crowds outside the Supreme Court celebrating the long-awaited decision, a sentiment which was echoed all over the country.

Main Issue:

Should same-sex marriage be federally legalized so that all 50 US states are required to recognize same-sex marriage? Along with this, the case looked at whether or not the 14th amendment requires two main things. First, does the 14thamendment require states to license marriages to people of the same sex? Second, the court examined whether the 14thamendment requires states to recognize same-sex marriages performed in other states. 

End Result:

The court decided that yes, the 14th amendment does provide these rights for all Americans. This landmark decision made same-sex marriage legal across all 50 states in the United States and was an incredibly large milestone in the fight for same-sex marriage in the US. From this point on, any same-sex couple could marry in any US state. As well, this decision meant that same-sex couples would no longer have to worry about their marriage no longer being recognized if they traveled to another state. The ruling of the Supreme Court was decided by a 5-4 vote, with Justices Sotomayor, Kagan, Ginsburg, Breyer, and Kennedy in the majority, and Justices Roberts, Scalia, Alito, and Thomas dissenting.21

In the majority opinion, Justice Kennedy wrote:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”21

In the majority’s opinion expressed above, it is clear that marriage is viewed as a sacred bond that should not be defined to anyone, regardless of who the marriage is between. The words above express the sentiment that, in opposition to the view that same-sex couples will tarnish the tradition of marriage, same-sex couples honor the tradition of marriage so greatly that they wish to be part of it themselves. The court decided they had no place in denying any American that right. 

In contrast to this view, the 4 dissenting justices had a variety of opinions of why they dissented with the majority. Justice Roberts, in his opinion, stated that “Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, 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.”21

Robert’s opinion above falls in line with views often expressed by those who are against same-sex marriage. This argument, that the issue being discussed is not a federal one, but instead one that should be decided on a state-by-state basis, is not new and is often applied to other social issues in the US such as abortion.  

Impact of this Decision:

Due to the US Supreme Court’s decision in Obergefell v. Hodges, all 50 states were now required to recognize, and legally allow same-sex marriage to occur. As an incredibly massive victory of same-sex marriage activists and the LGBTQ+ community around the country, the vast importance of the Obergefell v. Hodges decision cannot be overestimated.

Concluding Remarks

Defining marriage as the union of one man and woman discriminates against same-sex couples, preventing them from receiving the same financial and economic benefits as heterosexual couples. 

Throughout the entire world, the legalities shaping same-sex marriage are complex, nuanced, and differ by location. In some countries, same-sex marriage has become an entirely normal occurrence. This stands in direct contrast to other countries that still see same-sex activity as a deadly offense. 

In the United States, landmark court cases, from United States v. Windsor to Obergefell v. Hodges, prove just how complex the legal side of the same-sex marriage debate can be. Viewpoints, often reinforced by history, tradition, and culture, can result in polarizing views on same-sex marriage that can be incredibly divisive. Simultaneously in the United States, the same-sex marriage debate often becomes intertwined with other greater philosophical and political debates. In the end, the process that the United States took to fully legalize same-sex marriage in 2015 demonstrates just how difficult the road to the legalization of same-sex marriage can be. 

Particularly due to the increasing diversity of family forms, same-sex marriages, and the families that often come along later, have become a part of the larger picture of inclusivity. Throughout the world, focusing on what constitutes a family, and the support that often comes with family, will hopefully illuminate the fact that same-sex marriages only lead to more examples of strong families. 

References

1. Benedetti, A. (2013, July 2). DOMA ruling helps undocumented immigrants as immigration benefits are extended to same-sex couples. The Huffington Post.

2. Marriage equality around the world. (n.d.). Human Rights Campaign.

3. Same-sex marriage around the world. (2019, October 28). Pew Research Center.

4. The state of gay rights around the world. (2016, June 14). The Washington Post.

5: Wareham, J. (2020, May 17). Map shows where it’s illegal to be gay – 30 years since WHO declassified homosexuality as disease. Forbes.

6. Afifi, T. (Presenter). (2021, January 14). Diversity in families. Lecture presented at University of California, Santa Barbara, .

7. History and timeline of the freedom to marry in the United States. (2015, June 26). Freedom to Marry.

8. Barnes, R. (2018, June 4). Supreme Court rules in favor of baker who would not make wedding cake for gay couple. The Washington Post.

9. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. (n.d.). Oyez.

10. Same-sex marriage, state by state. (2015, June 26). Pew Research Center.

11. Savage, D. G. (2013, June 26). Gay marriage ruling: Supreme Court finds DOMA unconstitutional. Los Angeles Times.

12. United States v. Windsor. (n.d.). Oyez.

13. Reilly, R. J. (2013, June 26). Supreme Court DOMA decision rules federal same-sex marriage ban unconstitutional. The Huffington Post.

14. United States v. Windsor, 2675 S. Ct. ___ (June 26, 2013).

15. Sacks, M. (2013, June 26). Supreme Court rules on prop 8, lets gay marriage resume in California. The Huffington Post.

16. Dolan, M., & Garrison, J. (2012, November 29). Prop. 8 supporters, opponents await supreme court decision. Los Angeles Times.

17. Strauss v. Horton, 168047 S. ___ (9th Cir. 2009).

18. Hollingsworth v. Perry. (n.d.). Oyez.

19: Hollingsworth v. Perry, 2652 S. Ct. ___ (June 26, 2013).

20. Liptak, A. (2015, June 26). Supreme Court ruling makes same-sex marriage a right nationwide. The New York Times.

21. Obergefell v. Hodges, No. 14-556, slip op. at 28 (U.S. June 26, 2015)

22. Kelly, K. C. (n.d.). Defense of marriage act. Brittanica.

23. Obergefell v. Hodges. (n.d.). Oyez.

Last Updated 4 March 2021