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Supreme Court: 14th Amendment Requires Recognition of Same-Sex Marriage

Gay Marriage LawCalifornia Bar Certified Specialist, Family Law



by Vanessa Soto Nellis





In 1883 the Supreme Court of the United States (SCOTUS) ruled that couples engaging in interracial sex (Pace v. Alabama) are not in violation of the Fourteenth Amendment to the United States Constitution, which was ratified just 15 years previously. Amendment XIV addressed citizenship rights and equal protections in a post-Civil War era when former slaves struggled for recognition.

In 1967 SCOTUS went a step further in Loving v. Virginia, invalidating state laws prohibiting marriages between interracial couples.

Nearly 50 years later, the Supreme Court in a 5-4 decision re Obergefell v. Hodges, invalidated 13 state's laws prohibiting same-sex marriages. SCOTUS cited Confucius: "marriage lies at the foundation of government" and Cicero, "The first bond of society is marriage; next, children; and then the family."

…history is the beginning of these cases. The re­spondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. . . The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. . .it is the enduring importance of marriage that underlies the petitioners’ contentions.

History circles back. SCOTUS rulings for Pace, Loving and Obergefell relied heavily on the 14th Amendment which attaches a Due Process Clause, upholding the Bill of Rights, or first 10 amendments to the Constitution. In Obergefell, Justice Anthony Kennedy states that the Bill of Rights gives protections for "personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs."

Further, a judicial responsibility exists, which may sometimes be guided by traditional views:

That method respects our history and learns from it without allowing the past alone to rule the present. . .The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

The SCOTUS opinion for Obergefell is a landmark ruling. The respondents claimed there hasn't been enough rhetoric for the courts to make such an important decision. But the opinion announced today disagreed, listing countless referenda, debates, studies and an untold number of court cases. There have been more than 100 amici briefs ('friend of the court' filings) from businesses, labor unions, religious organizations, etc., all stating their opinions or agendas regarding same-sex marriage. There has been the Defense of Marriage Act (DOMA) defining marriage as a union between one man and one woman, and then the repeal of DOMA.

Despite the respondent's appeal to wait, the Obergefell opinion contends that the Constitution allows for asserting a fundamental right without waiting for legislative action. Therefore, the SCOTUS opinion concludes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family…Their (plaintiffs') hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions…The Constitution grants them that right.


Vanessa Soto Nellis a California State Bar Certified Specialist in Family Law. Contact her via email:; or by phone: 818.907.3274.


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