Implementing Obergefell: Who Decides the Scope of a Newly Minted Right?

The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick,[1] in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.

Under that document’s Supremacy Clause,[2] all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.

Justice Kennedy’s opinion for the 5 to 4 majority in Obergefell held that

the right to marry is a fundamental right inherent in the liberty of the person, and under the Due   Process and Equal Protection 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 [1972] must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. (Emphases added.)

Obergefell struck down laws in four states—in Michigan, Kentucky, Ohio, and Tennessee—and in the process created a new constitutional right for same-sex couples: the right to marry. What does it mean to say the decision is “binding” on all states? What, precisely, is the holding of Obergefell, and who will decide peripheral issues involving family law, employee benefits, and the like?

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