Helping to Build the Marriage Equality Case

 Today’s decision in Obergefell v. Hodges represented the successful culmination of a four-month endeavor for myself and the other students in the Supreme Court Litigation Clinic, where we assisted in writing the briefs for petitioners from Kentucky. But for countless others, this is the result of decades of activism and persistence in the face of inequality. We were touched by the stories of our clients from Kentucky, who graciously came to Stanford in the spring to meet us and describe their experiences. We are grateful and humbled that our clients, co-counsel, and Stanford Law School allowed us to share in the experience of working on such a historic case.

In many ways, Justice Kennedy’s majority opinion in Obergefell follows the path established in his majority opinions in Romer, Lawrence, and Windsor: It is a ruling upholding and extending the equal rights of gay people. It declines to engage in the traditional Fourteenth Amendment tiers of scrutiny in favor of an approach based on liberty and dignity. It was even issued on June 26, the same day that Lawrence (June 26, 2003) and Windsor (June 26, 2013) were issued. Despite these similarities, several noteworthy features of the opinion deserve further discussion for their potential effect on subsequent litigation involving the Fourteenth Amendment.

One lesson from Windsor that repeats itself in Obergefell is the impact that stories of same-sex couples’ lived experiences have had on Justice Kennedy. As in Windsor, Justice Kennedy devotes several pages early on in Obergefell to describing the relationships of the petitioners at the center of the case, conveying the real costs to gay couples around the country of not being granted the same marital status that heterosexual couples enjoy. Because Obergefell involved twelve couples all with different experiences, it was a challenge focusing on the stories of individual plaintiffs that would resonate with the Justices. At oral arguments, however, both Mary Bonauto and Doug Hallward-Driemeier were able to expertly weave the stories of several couples into their legal arguments, drawing out salient examples of the hardships couples faced because they could not marry. It is no coincidence that the three stories discussed by Bonauto and Hallward-Driemeier at oral arguments – those of April DeBoer and Jayne Rowse, Ijpe DeKoe and Thomas Kostura, and James Obergefell and John Arthur – are all discussed in Part I.A of Kennedy’s opinion.

Notably absent from the majority opinion, however, is an explicit discussion of the “slippery slope” argument that featured prominently in the conservative Justices’ questioning at oral arguments. This argument asserts that if same-sex couples have a fundamental right to marry, so do cousins, polygamists, and other groups traditionally denied the right to marry. While the majority opinion never explicitly mentions this argument, it does seem to implicitly cut off the notion that polygamists, at least, would share the fundamental right. In setting out four principles in support of a fundamental right to marry, Justice Kennedy refers to marriage as “a two-person union unlike any other,” and expresses that the right is one shared by couples: “[J]ust as a couple vows to support each other, so does society pledge to support the couple.” (Opinion 13, 16). While the right to marriage for consanguineous couples is not even alluded to in Obergefell, the opinion seems clear that the right to marry, as currently understood, does not extend to marriages involving three or more people. Then again, it was only two years ago that Justice Kennedy told us that the ruling in Windsor was “confined to those lawful marriages” granted by the State, so the outer bounds of the right granted today may be hard to predict.

A final aspect of today’s opinion worth mentioning is Justice Kennedy’s expansion on the somewhat enigmatic line from Windsor that the Due Process Clause and Equal Protection Clause make each other “all the more specific.” Describing the relationship between the two Clauses as a “synergy” in Obergefell, Justice Kennedy explains that “in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” (Opinion 20). Perhaps this, then, offers a way for future litigants to successfully assert fundamental rights that weren’t expressly recognized in 1868, which has been the predominant fundamental rights analysis under Washington v. Glucksberg. If so, this is an exciting development that will deserve more academic attention after the well-deserved celebrations for today’s achievement of marriage equality are over.

Alex Twinem is a student at Stanford Law School who worked on the  Obergefell v. Hodges case while in the Stanford Supreme Court Litigation Clinic this year. The clinic was co-counsel on the case. She is currently working at a private public interest firm in New York.