Provided is an argument against the States of Ohio, Michigan, Kentucky, and Tennessee’s position in Obergefell where these states either imposed a ban on same sex marriage in their respective jurisdictions and or refused to recognize the legal status afforded to same sex couples who were married in states where no such ban on same sex marriages existed. [1]
The appellants claimed the ban on same sex marriages violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, as well as a claim asserting a violation of the Civil Rights Act. [2]
To begin this argument, we must recognize binding statutory law that a court must follow as it works to render a decision.
In article VI of the United States Constitution, the Supremacy Clause is explicit in stating that the U.S. Constitution and the laws of the United States “shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” [3]
This clause tells us that not only must the states abide by the decision of the Supreme Court, but that if federal laws exist that contradict the laws in the state jurisdiction, federal law will preempt state law.
Secondly, the Equal Protection and Due Process Clauses of the Fourteenth Amendment tells us that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [4]
While these two clauses grant the appellants with significant Constitutional rights, the most compelling aspect is that when joined with the Supremacy Clause, the inference is that being a citizen of the United States takes precedent over State Citizenship.
As such, when a state law infringes on the Constitutional rights and privileges of a citizen, the citizen has standing to seek redress.
In Obergefell, the issues at bar were:
1.Whether Ohio’s constitutional and statutory bans on recognition of marriages of same-sex couples validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.
2.Whether Ohio’s refusal to recognize a judgment of adoption of an Ohio-born child issued to a same-sex couple by the courts of a sister state violates the Full Faith and Credit Clause of the U.S. Constitution. [5]
In resolving the first issue, we reflect on the Due Process and Equal Protection Clauses which tell us that the state cannot “make or enforce laws that essentially deprive any person of life, liberty or property without due process of law.” [6]
When the states passed laws that banned and or refused to acknowledge established same sex marriages, the effect of those laws was to deny and deprive the appellants of the liberty to marry the person of their choosing.
Because the issue of liberty is protected under the Fourteenth Amendment, the requisite due process to deprive any citizen of this liberty is to amend the U.S. Constitution.
Without amending the Constitution, the State violated the appellant’s due process protections under the Fourteenth Amendment.
In resolving the second issue, we look to the Full Faith and Credit Clause contained in article IV, section 1 of the United States Constitution.
This clause, tells us that states have to respect the "public acts, records, and judicial proceedings of every other state." [7]
Because a marriage is a public act which is evidenced by the creation of a public record of the marriage and is a legal (judicial) proceeding; the state violated the Full Faith and Credit Clause when they refused to recognize a judgment of adoption of an Ohio-born child issued to a same-sex couple by the courts of a sister state.
[1] Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S., 191 L. Ed. 2d 953 (2015).
[2] U.S. Const. amend. XIV.
[3] U.S. Const. art. VI, § 2.
[4] Amend. XIV, supra.
[5] Obergefell, Supra.
[6] Amend. XIV, supra.
[7] U.S. Const. art. IV, § 1.