THE BLOG
06/28/2015 10:47 pm ET Updated Jun 28, 2016

Uncomplicating Same-Sex Marriage Law

With its decision in Obergefell v. Hodges, the U.S. Supreme Court uncomplicated same-sex marriage law. The Court's clear-cut rule that same-sex couples have a constitutional right to marry replaces the previous piecemeal approach generated by over a decade of new federal court decisions and state laws. Some states had banned same-sex marriage, some states permitted it legislatively, and some states permitted it by state court decision. Some federal courts upheld the state bans, others struck them down. The U.S. Supreme Court has now definitely settled the debate by allowing same-sex marriage across the county.

The U.S. Supreme Court found constitutional protection for same-sex marriage in the Fourteenth Amendment of the U.S. Constitution. The Court had previously interpreted this Amendment to encompass various constitutional rights not explicitly enumerated, including, for example, parental rights, the right to marital privacy involving the use of contraceptives, and the right to marry. In Obergefell, the Court confirmed that the right to marry applied to same-sex couples for the same reasons it applied to opposite-sex couples, such as the benefits of supporting marriage in society.

The speed of the development of same sex-marriage is practically unparalleled in the family law. Just in 1986, the U.S. Supreme Court handed down Bowers v. Hardwick, which upheld a Georgia law that criminalized certain homosexual acts. In 1996, the federal Defense of Marriage Act (DOMA) was enacted to restrict marriage to opposite-sex couples under federal law. Contrast this to 2003, when the U.S. Supreme Court overruled its own Bowers decision and 2012, when the Court struck down part of DOMA. Same-sex marriage is now guaranteed across the country, 12 years after Massachusetts became the first state to permit same-sex marriage.