gender law slide

1. What's wrong
with
Obergefell?
Rita Terradas, Maria Tarragó, Laia Tarongí, Courtney
Oconnor, Teresa Matna, and Mathew Chavira

2. INTRODUCTION

3. SUMMER 2015

4. INTRODUCTION
● Ohio couple married in Maryland as one man was dying of ALS.
● Survivor denied "surviving spouse" status as Ohio law only
recognized traditional marriage.
● Federal Dist. Court Judge ruled Ohio law discriminatory under the
14th Amendment "Equal Protection" Clause.
● Ohio appealed to 6th circuit Court of Appeals in Cincinnati.
● 6th Circuit took an originalist view - no federal issue involved.
● First federal appeals court to uphold a ban on same-sex marriage.
● Obergefell appealed to Supreme Court.

6. CASE
● GLAD (Gays & Lesbian Advocates & Defenders) picked up tab for Obergefell.
● Roughly 150 amicus briefs fled (including one by the Obama Administration).
● Supreme Court granted certiorari and heard oral arguments in April 2015.
● US vs Windsor (2013) which struck down DOMA is an important precedent.
DECISION
● Announced in June 2015.
● Ohio law banning gay marriage struck down 5-
4.
● Justices voted same as Windsor.
● Kennedy wrote the decision.
● Each justice in minority wrote his own dissent.

7. “These consideratons lead to the conclusion that the right to
marry is a fundamental right inherent in the liberty of the
person, and under the Due Process and Equal Protecton
Clauses of the Fourteenth Amendment couples of the same-
sex may not be deprived of that right and that liberty. The
Court now holds that same-sex couples may exercise the
fundamental right to marry. No longer may this liberty be
denied to them. Baker v. Nelson must be and now is overruled,
and the State laws challenged by Pettoners in these cases are
now held invalid to the extent they exclude same-sex couples
from civil marriage on the same terms and conditons as
opposite- sex couples.”
Obergefell v. Hodges, 576 U.S. 644, 675-6 (2015).

8. What are the Due Process and Equal Protection Clauses?
“No State shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any State deprive any person of
life, liberty, or property, without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the
laws.”
– 14th Amendment of US Constitution

9. “No union is more profound than marriage, for it embodies
the highest ideals of love, fdelity, devoton, sacrifce, and
family. In forming a marital union, two people become
something greater than once they were. As some of the
pettoners 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 fnd its
fulfllment for themselves. Their hope is not to be
condemned to live in loneliness, excluded from one of
civilizaton's oldest insttutons. They ask for equal dignity in
the eyes of the law. The Consttuton grants them that
right.”
Marital union creates something “greater” ?
Obergefell v. Hodges, 576 U.S. 644, 681(2015).

10. SCOTUS on Importance of Marriage
“The lifelong union of a man and a woman always has promised
nobility and dignity to all persons, without regard to their station
in life. Marriage is sacred to those who live by their religions and
offers unique fulfillment to those who find meaning in the secular
realm. Its dynamic allows two people to find a life that could not
be found alone, for a marriage becomes greater than just the two
persons. Rising from the most basic human needs, marriage is
essential to our most profound hopes and aspirations.”
Obergefell v. Hodges, 576 U.S. 644, 656-7 (2015).
They were looking at the history of the Marriage, the subject before
the court.

11. SCOTUS on Importance of Marriage, Contnued
“The pettoners acknowledge this history but contend that these cases cannot end there. Were their intent to
demean the revered idea and reality of marriage, the pettoners' claims would be of a diferent order. But that is
neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies
the pettoners' contentons. This, they say, is their whole point. Far from seeking to devalue marriage, the
pettoners seek it for themselves because of their respect—and need—for its privileges and responsibilites. And
their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”
“A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-
person union unlike any other in its importance to the commited individuals.”
Obergefell v. Hodges, 576 U.S. 644, 666, (2015)
“The nature of marriage is that, through its enduring bond, two persons together can fnd other freedoms, such as
expression, intmacy, and spirituality.”
Obergefell v. Hodges, 576 U.S. 644, 666, (2015).

12. More excerpts from Opinion..
“Without the recogniton, stability, and predictability marriage
ofers, their children sufer the stgma of knowing their families are
somehow lesser. They also sufer the signifcant material costs of
being raised by unmarried parents, relegated through no fault of
their own to a more difcult and uncertain family life.”
“These aspects of marital status include: taxatonn inheritance and
property rightsn rules of intestate successionn spousal privilege in
the law of evidencen hospital accessn medical decisionmaking
authorityn adopton rightsn the rights and benefts of survivorsn birth
and death certfcatesn professional ethics rulesn campaign fnance
restrictonsn workers' compensaton beneftsn health insurancen and
child custody, support, and visitaton rules.”
Obergefell v. Hodges, 576 U.S. 644, 668-670 (2015)

13. Impact of the Ruling during Life
● Same Sex Couples aforded
right to marry and the benefts
of marriage.
● Adoption/child custody.
● Spousal priority in the event of
incapacity (medical decision-
making and
conservatorship/guardianship).
● Creditor protection
Impact of the Ruling after Death
● Decision about organ
donation/burial.
● Notice of probate proceedings.
● Spousal right to inherit.
● Naming a spouse as a
benefciary.
● Spousal survivorship rights
(pension benefts).

14. RESEARCH QUESTION

15. What is wrong with Obergefell?
- “No union is more profound than marriage, for it embodies the highest ideals of love, fielity, ievoton,
sacrifce, ani family.”
- Later, the Court declares, “same-sex couples, too, may aspire to the transcenient purposes of marriage ani
seek fulfllment in its highest meaning.”
- The Court declares marriage “essental to our most profound hopes and aspiratons,” implies nonmarital
children view their families as “somehow lesser,” and describes unmarried adults as “coniemnei to live in
loneliness.”
- Described one of the couples seeking marriage as "seeking relief from the contnuing uncertainty their
unmarriei status creates in their lives."

16. 1. The issue with undermining non-marital couples and the glorification of marriage.
- Why is it so trascendental?
- What are the benefits of marriage and the cost of opportunity of the couples being arbitrarily
banned from marriage?
2. Judicial interpretation.
- Which rights are fundamental?
3. Obergefell fails to address the issue of equal protection and whether it should be jointly or
separately considered with the Due Process Clause.
What is wrong with Obergefell?

17. Does Obergefell wrong or insult non-marital families?
Scholars such as Carpenter and Cohen argue that
Obergefell’s core reasoning also shames single persons.
TWO main arguments:
1. “Marriage is a valuable exercise of autonomy
because, for many, the choice to marry is among
life’s momentous acts of self-defniton.
2. “The choice to marry is a choice to enter a two-
person union unlike any other in its importance
to the commited individuals.”
The Court claims that some people value marriage
does not imply that other types of family are less
- The Court glorifes marriage as a secular ideal for
family life and authorizes states to encourage
marriage as an ideal family form. The Court
proclaims, “no union is more profound than
marriage, for it embodies the highest ideals of
love, fdelity, devoton, sacrifce, and family”.
- Obergefell’s glorifcaton of marriage violates the
ideal of public reason in a way that denigrates
nonmarital families and contradicts the opinion’s
own legal commitment to equal dignity.
And so, is Obergefell’s
glorification of marriage wrong?

18. CASE LAW

19. The First Privacy Interests from U.S. Constitution
Griswold v. Connecticut (1965)
● First reading of a right to privacy in the U.S. Constitution
● Struck down law prohibiting use of contraceptives for married couples
● “Would we allow the police to search the sacred
● precincts of marital bedrooms for tell tale signs
● of the use of contraceptives? The very idea is
● repulsive to the notions of privacy surrounding
● the marriage relationship.”
Eisenstadt v. Baird (1972)
● Court extended privacy protections to unmarried
● persons seeking contraceptives as well

20. Loving v. Virginia & Zablocki v. Redhail: History of
the Right to Marry
● Loving v. Virginia recognises that marriage was protected by the Due
Process Clause of the Fourteenth Amendment, as one of the vital personal
rights essential to the orderly pursuit of happiness by free men → the right
to marry as a fundamental right and same-sex couples may exercise it
● Zablocki v. Redhail described marriage as the most important relation in life
and foundation of family and society → also provides protection for non-
marital associations
● While Loving Court rejected a prohibition of interratial marriage as it violates
equal protection, Zablocky Court recognized that the state had legitimate
interest in preventing noncustodial parents with unmet economic obligations
with children to marry someone other than the custodial parent
Conclusion (Obergefell): marriage arbitrary denial imposes opportunity costs

21. Bowers v. Hardwick (1986)
● Court refused to strike down an anti-sodomy law that essentially prohibited
same-sex sexual relations
● Said that the right to engage in homosexual conduct had no roots in marriage,
procreation, etc and was not "deeply rooted in the nation's history"
● Court further said that this was a matter of morals and the law is constantly
based on notions of morality

22. Lawrence v. Texas (2003): Liberty Interest vs. Fundamental Right
● Court strikes down on due process grounds a Texas law criminalizing same-
sex relations, overruling Bowers
● A person’s liberty interests, rooted in Griswold, protects them from unwarranted
government intrusions into the home
● The law in question here had more far-reaching consequences than prohibiting
a sexual act: It sought to control a personal relationship that was within the
liberty of a person to choose
○ The sexual conduct is just one element in a bond more enduring

23. Lawrence v. Texas (continued…)
● The Court found that a right can still
exist, even when it is not deeply
rooted in history and tradition
● However, Court was unclear what the
precise nature of the right was:
○ Right to privacy?
○ Right to sexual privacy?
○ Right to sexual privacy at
home?
○ Right to engage in sexual
relations between consenting
adults at home?
○ Right to same-sex sexual
relations between consenting
adults at home?

24. Obergefell on Bowers and Lawrence
● The Obergefell Court explained that "Bowers upheld state action that denied gays and lesbians
a fundamental right and caused them pain and humiliation" and that "Bowers was eventually
repudiated in Lawrence."
● Obergefell was recognizing that the right to engage in a consensual non-marital relation was
not a mere liberty but was instead itself a fundamental right beyond simple non-criminal
prosecution.
● "But while Lawrence confirmed a dimension of freedom that allows individuals to engage in
intimate association without criminal liability, it does not follow that freedom stops there. Outlaw
to outcast may be a step forward, but it does not achieve the full promise of liberty."
○ So, what is the “full promise of liberty,” then?

25. Washington v. Glucksberg (1997): the Historical Test
● Glucksberg employed a historical test to
determine whether rights should be recognized
as fundamental
● The Obergefell Court made explicit that:
○ First, the right to marry had already been
recognized in Loving 1967, thus their
analysis would be inapplicable when
deciding whether the already-recognized
right to marry is fundamental
○ Second, rights come not from ancient
sources alone, such an approach would
allow the past alone to rule the present
Obergefell Court explained: "Loving
did not ask about a 'right to interracial
marriage' . . . and Zablocki did not ask
about a 'right of fathers with unpaid
child support duties to marry."'
Instead, in each case the Court
considered whether "there was a
sufficient justification for excluding the
relevant class from the right."

26. CRITICAL ASSESSMENT

27. Marriage Supremacy
Key questions:
● Why is there such a disparity between married and
unmarried couples?
● Who is at fault for the inequity?
● Could rectifying, rather than affirming the disparity be a
better solution?

28. Ambiguities: Which rights are considered fundamental?
Old Formula per Glucksberg: fundamental rights had to be "deeply rooted" in the nation's
history and traditions
New formula per Obegerfell: tradition and history is now to be used as a guide rather than a
limiting strategy, setting the “outer boundaries” of the analysis.
Will the new formula actually lead to different decisions?
Is the presence of inequality required for standing to invoke fundamental rights analysis?

29. Positive Consequences
● Reduction in marginalisation of LGBT people
● Gains in life satisfaction for LGBT people
● Improved mental health of LGBT people

30. CONCLUSIONS

31. Important Implication # 1: will other rights be taken away?
● Court failed to overturn Washington v. Glucksberg
○ Only limited it…very unclear what formula to use…other rights could be taken away?
○ Here, “right to marriage” also very broad & comprehensive
“Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to
Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), which
called for a “ ‘careful description’ ” of fundamental rights…..Glucksberg did insist that liberty under
the Due Process Clause must be defined in a most circumscribed manner, with central reference
to specific historical practices. Yet while that approach may have been appropriate for the asserted
right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has
used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask
about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and
Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather,
each case inquired about the right to marry in its comprehensive sense, asking if there was a
sufficient justification for excluding the relevant class from the right. See also Glucksberg,
521 U.S., at 752–773, 117 S.Ct. 2258 (Souter, J., concurring in judgment); id.,
at 789–792, 117 S.Ct. 2258 (BREYER, J., concurring in judgments).” Obergefell v. Hodges, 576
U.S. 644, 671 (2015)

32. Important Implication # 2: Overturning of Roe v. Wade
● Roe v. Wade overturned this summer
○ They utilized Glucksberg (surprise surprise..)
We hold that Roe and Casey must be overruled. The
Consttuton makes no reference to aborton, and no such
right is implicitly protected by any consttutonal provision,
including the one on which the defenders of Roe and Casey
now chiefy rely—the Due Process Clause of the Fourteenth
Amendment. That provision has been held to guarantee
some rights that are not mentoned in the Consttuton, but
any such right must be “deeply rooted in this Naton's
history and traditon” and “implicit in the concept of
ordered liberty.” Washington v.
Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d
772 (1997)

33. Important Implication # 3: Marriage is only important relationship?

34. Important Implication # 4: Could Obergefell be overturned ??
Video: July 17,
2022
Current U.S.
Senator Ted Cruz
(R-TX)

35. Current SCOTUS Justice Clarence Thomas Calls for Overturning of Obergefell
● In his concurring opinion. The court:
“should reconsider all of
this Court’s substantive
due process precedents,
including Griswold,
Lawrence, and
Obergefell”

36. Loving v. Virginia (Interracial marriage left to states?)
Video: March 23rd, 2022
U.S. Senator Mike Barun (R-
IN)
According to the Glucksberg formula, do
you all think Loving v. Virginia would be
overturned?

37. Conclusions
● Glorification of Marriage
● Devalues non-marital relationships
● How can we legally recognize
intimate non-marital relationships?
○ Benefits etc
● Other rights may be taken away
since Obergefell just sidestepped
the issue distinguishing Glucksberg
on its facts..

38. THANK YOU