Facts and Proceedings

A same-sex couple filed a lawsuit, Obergefell v. Kasich, in the U.S. Southern District of Ohio on July 19 2013, alleging that the state discriminates against same-sex couples who have married lawfully in other jurisdictions. In 2013, James Obergefell married his partner of twenty year, John Arthur, in Maryland where same-sex marriage is permitted. Because John Arthur was terminally ill and suffered from amyotrophic lateral sclerosis (ALS), the couple wanted the Ohio Registrar to confirm James Obergefell as his surviving spouse on his death certificate. However the state Attorney General’s office decided to defend Ohio’s same-sex marriage ban. On July 22 2013 the District Judge granted the couple’s motion to restrain the Ohio Registrar from accepting any death certificate unless it recorded the deceased’s status at death as “married” and his partner as “surviving spouse”, whilst in November 2014 the Sixth Circuit ruled that Ohio’s ban on same-sex marriage does not violate the U.S. Constitution. On November 14 2014 the same-sex couple filed an application to the U.S. Supreme Court. They asked the court to consider: 1) whether Ohio’s refusal to recognise marriage from other jurisdictions violates the Fourteenth Amendment’s guarantee of due process and equal protection, and 2) whether states must recognise same-sex marriages performed outside their borders. On January 16 2015 the U.S. Supreme Court consolidated this case along with three others that challenge either a state's refusal to recognise same-sex marriages from other jurisdictions, or a state's refusal to license same-sex marriages, or both – namely Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), Bourke v. Beshear (Kentucky) – in order to review the case. The court heard oral arguments on April 28 2015 (part 1 and part 2) and their decision is expected in late June.

Divided Supreme Court Justices

The Supreme Court Justices appear to be divided over this issue. Justices Scalia and Samuel A. Alito Jr. seem to be more in doubt about a ruling in the favour of same-sex marriages. Justice Antonin Scalia emphasised that same-sex marriage is relatively new, and that prior to the Netherlands in 2001 there was not a single society that legally permitted same-sex marriage. He also thought the issue here is not whether there should be same-sex marriage, but who should decide upon it. He also doubted whether the answer should be provided by the court, or instead by the people or by their elected representatives. Justice Scalia was also concerned that a ruling for same-sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching. Chief Justice John Roberts Jr. was worried about shutting down a fast-moving societal debate about same-sex marriage if the court decides in favour of the applicants in this case. On the other side, Justices Ruth Bader Ginsburg and Sonia Sotomayor made points against the argument that the banning of same-sex marriage is for the benefit of children. They noted that many gay couples have children and that all the benefits that marriage affords would still be available to heterosexual couples. Justice Elena Kagan said that permitting same-sex marriage would actually benefit children as more children could be adopted. Justice Kagan also hoped that the Supreme Court would fulfill its role in protecting minorities and establishing a right to same-sex marriage. The author of three landmark opinions expanding the rights of gay Americans, Justice Anthony M. Kennedy, is believed to have the deciding vote in this case. On the one hand, he seems to be concerned about changing the concept of marriage which has persisted for thousands of years, on the basis of the experiences of just one decade. On the other hand, he expressed his understanding of the dignity that would be instilled by a concept of marriage that does not exclude gay couples.

“Freedom” in Collision

The divided reasoning and arguments of the Supreme Court Justices show their conflicting views on history, tradition, biology, constitutional interpretation, the democratic process and the role of the courts in social change. I am more concerned about the collision of the concept of freedom which is likely to be generated by this case. A couple of weeks ago a number of prominent religious leaders and lay leaders, including Republican presidential candidate and former Arkansas Gov. Mike Huckabee, signed a petition pledging civil disobedience if the Supreme Court decides to redefine marriage to include same-sex couples, inasmuch as it would infringe upon their religious freedom and conscientious freedom. They are worried that the next step in the redefinition of marriage will be the enforcement of followed action by means of the power of the states (for example marriage services for same-sex couples), which would inescapably engender a conflict with their religious freedom and conscientious freedom. They emphasised that, “Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order.” This petition corresponds with Justice Scalia’s concern about the potential conflict between gay people’s freedom to marry whoever they want and the religious freedoms of the clergy or religious individuals working in the wedding business. As we can now see, this is not just a question of conflict between different values; rather it is about competing interpretations of the conception of political morality. What is the best way to understand freedom? Should the court understand freedom as being free from external interference or free from dominance? Are there priority differences with regard to the conflicting freedoms in this case? The final ruling of the Supreme Court is expected to unravel the underlying reasons behind these issues.