Do Same Sex Couples Have A Constitutional Right To Marry? United States Supreme Court Agrees To Hear Four New Cases On Same Sex Marriage

On January 16, 2015, the United States Supreme Court agreed to hear four new cases on same-sex marriage.  The specific questions that the Supreme Court will address are (1) whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex, and (2) whether the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

The Fourteenth Amendment of the United States Constitution contains the “Equal Protection Clause,” which provides that individual states may not “deny to any person within its jurisdiction the equal protection of the laws.”  The Fourteenth Amendment also contains the “Due Process Clause,” which provides that states may not “deprive any person of life, liberty, or property, without due process of law.”

In the 1972 case of Baker v. Nelson, 409 U.S. 810 (1972), the U.S. Supreme Court refused to review a finding of the Minnesota Supreme Court that upheld the state’s denial of a marriage license to a same-sex couple.  In a one-line order, the Court stated that the appeal did not raise "a substantial federal question."

However, since Baker, public opinion and legal recognition of same-sex marriage have drastically changed. In 2003, the Massachusetts Supreme Court ruled in Goodridge v. Dept. of Public Health that same-sex couples had the right to marry under their state constitution.  Goodridge began a trend of state recognition of same-sex marriage by state legislature, court action, or popular vote.

As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen states, all of which are under court challenge.  In addition, in United States v. Windsor, 133 S. Ct. 2675 (2013), the U.S. Supreme Court invalidated the Defense of Marriage Act of 1996, a law that banned the federal government from recognizing same-sex marriages.

The Supreme Court has agreed to hear four cases arising out of the United States Sixth Circuit:

  • Bourke v. Beshear involves a federal constitutional challenge to a Kentucky state constitutional amendment providing that "[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky." Ky. Const. § 233A.


  • DeBoer v. Snyder involves a constitutional challenge to a Michigan law that declares marriage "inherently a unique relationship between a man and a woman." Mich. Comp. Laws § 551.1; see also Mich. Const. art. I, § 25.


  • Tanco v. Haslam deals with a constitutional challenge to a Tennessee law providing that “the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage." Tenn. Code Ann. § 36-3-113(a).


  • Obergefell v. Hodges involves the State of Ohio, which defines marriage as between “one man and one woman,” refusing to recognize out-of-state same-sex marriages, which is set forth in a law providing that "[a]ny marriage entered into by persons of the same sex in any other jurisdiction . . . shall be considered and treated in all respects as having no legal force or effect." Ohio Rev. Code § 3101.01(C)(2).  This case is the first case listed in the Supreme Court’s Order granting certiorari, and accordingly, if customary practice is followed, this case will become the historic title for the Court’s final ruling.

Kentucky, Michigan, Tennessee and Ohio are among the fourteen states that ban gay marriage.  The remaining states are Alabama, Arkansas, Georgia, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Dakota and Texas.

The Supreme Court will hear oral arguments between April 20, 2015 and April 29, 2015. A decision is expected by late June.

Article written by Jeffrey Jaketic, associate at Hinman, Howard & Kattell, LLP.  To contact Mr. Jaketic directly please email him at or by telephone at (607) 723-5341.

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