OBERGEFELL V HODGES

 Definition of marriage: a union between one man and one woman

 Fourteenth Amendment- guarantee of equal protection, due process clause

 They do not seek to devalue marriage , they seek it for themselves, for its
privileges and responsibilities

 Four Principles

o Right to personal choice regarding marriage is inherent in the concept of

individual autonomy

o Right to marry is fundamental because it supports a two-person union

unlike any other in its importance to the committed individuals

o It safeguards children and family (Recognition, stability, predictability

marriage); the marriage laws at issue here harm and humiliate
children of same-sex couples

o Marriage is the keystone of the Nation’s social order; the State contributes
to the fundamental character of marriage by placing it at the center of
many facets of the legal and social order

 The Marriage Laws in issue are in essence unequal. Same sex couples are
denied benefits afforded to opposite sex couples. Denial works a grave and
continuing harm, serving disrespect and subordinate gays and lesbians

 The right to marry is fundamental right inherent in the liberty of the person.

 First Amendment, ensures religion that they are protected as they seek to
teach principles central to their lives and faiths

 Two questions:
o Whether the 14th Amendment requires a State to license marriage
between two people of the same sex
 o Whether the 14th amendment requires a State to recognize a same-sex
marriage licensed and performed in another State which does grant that
right

 Obergefell and Arthur; DeBoer and Rowse and DeKoe and Kostura

 DOMA- Defense of Marriage Act defining marriage for all federal-law purposes
as only a legal union between one man and one woman as husband and wife

 A changed understanding of marriage where new dimensions of freedom

become apparent to new generations often through perspectives that begin in
pleas and protests which are considered in the political sphere and the judicial
process

 UNITED vs WINDSOR- invalidated the DOMA to the extent that it barred the Fed
Govt from treating same-sex marriage as valid even when they were lawful in the
state where they were licensed

 DUE PROCESS: 14th Amendment: liberties protected are in the Bill of Rights, in
addition, these liberties extend to certain personal choices central to individual
dignity and autonomy

 Right to marry is fundamental under the Due Process Clause

 Issues such as use of contraceptives, childbearing are protected, and these are
decisions concerning marriage, considered the most intimate that an individual
can make. It is contradictory to recognize the right of privacy with respect to
such matters but not with respect to the decision to enter the relationship that is
the foundation of the family in our society

 Loving (interracial), Griswold (contraception) , Turner (prisoners’ right to marry),

Lawrence (invalidated the law that made same sex intimacy a criminal act),
Zablocki (barred fathers who were behind on child-support from marrying)

 Same sex couples are denied the constellation of benefits that the States
have linked to the marriage. Same sex couples are consigned to an instability
many opposite sex couples would deem intolerable

 State attaches a great significance to marriage and the exclusion from marriage
of gays and lesbians, has the effect of teaching that they are unequal in
 important aspects, laws excluding them from marriage impose stigma and
injury the kind prohibited by our basic charter

 Respondents: Petitioner do not assert the right to marry but the non-
existent right to same-sex marriage- if rights were defined by who exercised
them, received practices could serve as their own continues justifications and
then new groups cannot invoke rights once denied

 Rights come not from ancient sources alone; they rise too from a better informed
understanding of how constitutional imperatives define a liberty that remains
urgent in our own era.

 New insights and societal understandings can reveal unjustified inequality within
our most fundamental institutions that once pass unnoticed and unchallenged

 Obergefell: erasure of marriage, DeBoer denial of certainty that mothers desire to

protect their children

 Respondents: licensing same sex marriage will harm marriage as an

institution by leading to fewer opposite sex marriages- counterintuitive view
of the opposite sex couple’s decisionmaking regarding marriage and parenthood.
This decision could be based on many factors like personal, romantic or practical
and it is unrealistic to conclude that an opposite sex couple would choose not to
marry simply bec same sex couples may do so.

 Religions and those who adhere to religious doctrines may continue to advocate
with utmost sincere conviction that by divine precepts , same sex marriage
should not be condone

 Bake and Nelson is now overruled, reversed decision of the Sixth Circuit
 MASTERPIECE CAKESHOP V COLORADO CIVIL RIGHTS COMMISSION

 CADA- Colorado Anti-Discrimination Act which prohibits discrimination based on

sexual orientation in a place of business engaged in any sales to the public and
any place offering services… to the public
 Religious and philosophical objections to gay marriage are protected views and
in some instances protected forms of expression
 The law must be applied in a manner that is neutral toward religion
 Phillips’ artistic skills to make an expressive statement, a wedding endorsement
in his own voice has a significant First Amendment speech component
 In 2012, Colorado has not yet recognized the validity of gay marriages
 Some commissioners endorsed the view that religious beliefs cannot legitimately
be carried into the public sphere or commercial domain.
 The government, consistent with the Constitution’s guarantee of free exercise,
cannot impose regulations that are hostile to the religious beliefs of affected
citizens; and cannot act in a manner passing judgment upon the illegitimacy of
religious beliefs
 The government has no role in expressing whether the religious ground for the
baker’s conscience-based objection is legitimate or illegitimate
 The objection was considered with the neutrality required by the Free Exercise
Clause
 The reconciliation of two principles: authority of the State to protect the rights and
dignity of gay persons, right of all persons to exercise fundamental freedoms
under the 1st Amendment
 Freedoms: Freedom of Speech and the Free Exercise of Religion
 Making of a beautiful cake as an exercise of protected speech
 Baker: Creating a cake for a same-sex wedding would be equivalent to
participating in a celebration that is contrary to his own most deeply held beliefs
 Public Accommodation: Any place of business engaged in any sales to the public
and any place offering services to the public excluding a church, synagogue,
mosque or other place that is principally used for religious purposes
 Baker: CADA was applied in a way that would require him to create a cake for a
same-sec wedding violating his 1st Amendment right to free speech by
compelling him to exercise his artistic talents to express a message with which
he disagreed
 ALJ: CADA was a valid and neutral law of general applicability
 Religious and philosophical objections are protected, it is a general rules
that such objections do not allow business owners and other actors in the
economy to deny protected persons equal access to goods and services under a
neutral and generally applicable public accommodations law (believed that a
given group is the target of discrimination, do not violate 1st Amendment)
 This refusal would be well understood in our constitutional order as an exercise
of religion, an exercise that gay persons could recognize and accept without
serious diminishment to their own dignity and worth.
 Yet if that exception were not confined, then a long list of persons who provide
goods and services for marriages and weddings might refuse to do so for gay
persons, thus resulting in a community-wide stigma
 This involves a narrower issue: his objection has a significant 1st Amendment
speech component and implicates his deep and sincere religious beliefs
 Commissioners’ comments:
o If a businessman wants to do business in the state and he’s got an issue
with the—the law’s impacting his personal belief system, he needs to look
at being able to compromise
o We can list hundreds of situations where freedom of religion has been
used to justify discrimination. And to me it is one of the most despicable
pieces of rhetoric that people can use to—to use their religion to hurt
others.”
 To describe a man’s faith as “one of the most despicable pieces of rhetoric that
people can use” is to disparage his religion in at least two distinct ways: by
describing it as despicable, and also by characterizing it as merely rhetorical- as
something insubstantial and even insincere
 These statements cast doubt as to the fairness and impartiality of the
Commission’s adjudication
 As noted above, on at least three other occasions the Civil Rights Division
considered the refusal of bakers to create cakes with images that conveyed
disapproval of same-sex marriage, along with religious text. Each time, the
Division found that the baker acted lawfully in refusing service.
 The Commission’s treatment of Phillips’ case violated the State’s duty under the
First Amendment not to base laws or regulations on hostility to a religion or
religious viewpoint.
 The Free Exercise Clause bars even “subtle departures from neutrality” on
matters of religion.
 The Commission was obliged under the Free Exercise Clause to proceed in a
manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution
“commits government itself to religious tolerance”
 The Commission’s hostility was inconsistent with the First Amendment’s
guarantee that our laws be applied in a manner that is neutral toward religion.
 All in the context of recognizing that these disputes must be resolved with
tolerance, without undue disrespect to sincere religious beliefs, and without
subjecting gay persons to indignities when they seek goods and services in an
open market.
 The judgment of the Colorado Court of Appeals is reversed.