10th Aug 2015

Same Sex Marriage in the US – the Constitutional Tidal Wave

Same Sex Marriage in the US – the Constitutional Tidal Wave.

Back in May 2015 (‘Happy Anniversary?’ Solicitors Journal, 5 May 2015), David Allison and James Carroll reflected on the first anniversary of the legalisation of same-sex marriage in England and Wales. Since then, development on a huge scale has taken place across the Atlantic as same-sex marriage was legalised on a national level by the US Supreme Court on 26 June 2015 in a 5-4 decision. As of this date, state bans on same-sex marriage are unconstitutional and all states must now grant marriage licences to same-sex couples and recognise marriages which have taken place in other states. Unsurprisingly, the new law has been greeted with mixed feelings.  As the majority rejoice and welcome the new law, traditionalists see the change as an affront to religion and the conventional family unit.

How it all came about – Obergefell v Hodges

The US does of course have a long history of campaigning for gay rights and over the years, public support for same-sex marriage has grown. In recognition of this public sentiment and change in social attitudes towards same-sex relationships, many states started to lift state level bans on same-sex marriage or at the very least, provide for same-sex unions (if not already in place) following a 2004 ruling allowing same-sex marriage in Massachusetts, the first US state to do so.

The debate has populated much of the last 10 years and once again came to the fore this year when four cases were heard together before the Supreme Court on the question of whether states may constitutionally ban same-sex marriages or refuse to recognise same-sex marriages performed in other states. The cases were decided under the heading of Obergefell v Hodges and the court ruled on 26 June 2015 that the denial of marriage licences and non-recognition of same-sex couples violates the Fourteenth Amendment of the US Constitution (which addresses citizenship rights and equal protection).

Prior to the decision in Obergefell, 37 out of 50 states in the US issued marriage licenses to same-sex couples. The decision in Obergefell essentially extends this so all states must now issue marriage licences to same-sex couples and recognise marriages that have taken place in other states.  Associated legal rights and benefits available to heterosexual married couples also extend to same-sex married couples as a result of this decision.

The reactions

As one would expect, the decision in Obergefell has caused controversy throughout the US. The majority accept that the definition of the “modern family” has changed and that the laws of the land should adapt to accommodate this. This sentiment however is not felt throughout the US. According to recent poll (Gallup poll) in May 2015, 60% of Americans were in favour of same-sex marriage. This is in stark contrast to just 27% in 1996 showing the true extent of changes in social attitudes to same-sex relationships.  Opponents of same-sex marriage cite attacks on their religious belief and concerns over the changes to “traditional family unit”, arguments which have undeniably played a role in most (if not all) countries where same-sex marriage has been legalised.

In Alabama, in opposition to the ruling, some judges have refused to issue marriage licences altogether. So as to avoid any accusation of discrimination, the judges have declined to issue licences to both heterosexual and homosexual couples leaving couples wandering the state in search of a judge who will grant them a licence. However, this freeze on issuing marriage licences is simply not sustainable.  In Texas, the Attorney General, Ken Paxton has gone so far as to encourage non-compliance with the ruling as local officials waver over what to do as regards issuing marriage licences. The ruling has also seen the resignation of clerks in other states who claim the decision goes against their moral and ethical beliefs. The state of Kentucky is the first to have a case brought by the American Civil Liberties Union against a clerk who seeks to argue that it is against her Christian beliefs to issue the marriage licences to same-sex couples.

Objection to the ruling has also manifested itself in the form of some businesses refusing to cater for same-sex weddings such as florists or wedding cake designers. It remains to be seen how these cases will be treated and how far some individuals will go given the unequivocal ruling of the Supreme Court.

Who’s next?

As the legal landscape in this field shifts towards greater equality and as social trends emerge, commentators consider that South America will be next to jump on the legal bandwagon with legalisation of same-sex marriage set to be on the agenda in this region. At present, Brazil, Argentina and Uruguay already provide for same-sex marriage. Chile, Ecuador and Colombia recognise a form of civil union or registered partnership and there has been considerable progress in both Chile and Colombia in 2015 towards legalising same-sex marriage in the near future.


The legalisation of same-sex marriage in the United States represents a landmark decision. The Supreme Court has spoken and whilst opposition can be heard, it is overshadowed by the overwhelming support for this new constitutional right. It remains to be seen how this change in the legal and social landscape will permeate throughout the world, if at all, and whether other countries will now follow suit.

To find out more about the issues explored in this article, please contact associate Carla Ditz at Family Law in Partnership.

This article first appeared in Solicitors Journal.