Same-Sex Marriage and the Supreme Court

In 2013, the Court overturned essential Defense of Marriage Act (DOMA) provisions. Two years later, the Court determined that the U.S. Constitution guarantees marriage rights to gay couples.

Although Obergefell v. Hodges is a well-known U.S. Supreme Court case, the Court's history with same-sex marriage goes back to 1972. In 1972, the Court dismissed an appeal in Baker v. Nelson because it did not present "a substantial federal question." In Baker, the plaintiffs, a gay Minnesotan couple, appealed a Minnesota Supreme Court ruling that denied them a marriage license.

It took 41 years for the Court to address same-sex marriage rights again. In the interim, the fight for gay rights continued across America. Some states considered or passed constitutional amendments limiting marriage to opposite-sex couples. In other states, same-sex couples could enter civil unions or domestic partnerships. Yet, neither of these options offered the protections or benefits of marriage.


Marriage equality became the law of the land with the Court's 2015 decision in Obergefell. In this decision, which protected same-sex marriage rights, the Court determined that the 14th Amendment guaranteed a fundamental right to marry.

This article explores the history of same-sex marriage and the U.S. Supreme Court, from Baker to Obergefell.

Baker v. Nelson

In Baker, a Minnesotan couple, James McConnell and Richard Baker, appealed a Minnesota Supreme Court decision denying them a marriage license. The clerk of the local district court denied their marriage license application because of their sexual orientation. The couple sued the clerk in the trial court to force him to issue a marriage license. The trial court dismissed their case.

The couple appealed that decision to the Minnesota Supreme Court, and that Court also dismissed their appeal. The Court dismissed their final appeal on procedural grounds, finding their case lacked "substantial federal question."

United States v. Windsor

The Court next addressed gay marriage in United States v. Windsor. In Windsor, the plaintiff, Edith Windsor's wife, died and inherited her spouse's estate. Windsor and her wife married in Canada, and their marriage was valid in New York.

Windsor tried to use a federal inheritance tax exemption as a surviving spouse. She could not use this exemption because of Section 3 of the federal Defense of Marriage Act (DOMA). Section 3 prohibited the federal government from recognizing same-sex marriages permitted under state law. Since DOMA applied to federal law, the Internal Revenue Service (IRS) denied Ms. Windsor's claim because she was not a surviving spouse.

The high court ruled in favor of Windsor, finding that Section 3 of DOMA was unconstitutional "as a deprivation of the equal liberty of persons" under the Fifth Amendment. It also found that the law sought to injure gay Americans as a class, violating due process.


After Windsor, many court cases successfully challenged state bans on same-sex marriage. Courts found these bans violated the equal rights and due process of LGBTQ Americans. Over sixty state and federal court decisions have ruled that states must allow same-sex marriage or recognize marriages from other states.

One goal of the Supreme Court, based in Washington, D.C., is an even application of constitutional laws nationwide. A jurisdictional split occurs when different Courts of Appeal have different approaches to the same issue. When that happens, the legal question goes to the Supreme Court for resolution.

The Sixth Circuit

In November 2014, the Sixth Circuit Court became the first and only federal Court of Appeal to uphold state bans on same-sex marriage. It's this decision that the Supreme Court addressed in its Obergefell decision. The Sixth Circuit refused to apply the Windsor reasoning to state bans. Instead, this Court reasoned they had to follow the Supreme Court's precedent from Baker.

The Sixth Circuit's decision conflicted with the decisions of four other circuit courts. These courts each struck down bans against gay marriage. The Ninth Circuit, for example, found that Idaho and Nevada's same-sex marriage bans violated the Equal Protection Clause. The Ninth Circuit reasoned that these states discriminated based on sexuality and gender.

Obergefell v. Hodges

Obergefell is a consolidated case. Since different federal appellate courts reached different conclusions about same-sex marriage, the Court consolidated four of these cases. These cases included:

  • Bourke v. Beshear: Challenged Kentucky's refusal to grant same-sex marriage licenses or recognize same-sex marriage from other states. Kentucky refused to recognize Gregory Bourke's legal marriage to his partner in Canada
  • DeBoer v. Snyder: Challenged Michigan's ban on same-sex marriage. April DeBoer could not adopt her partner's children because Michigan law restricted second-parent adoption to married couples
  • Obergefell v. Hodges: Challenged Ohio's refusal to acknowledge same-sex marriages from other states. Ohio refused to list Jim Obergefell on the death certificate of John Arthur, his partner of 22 years. Obergefell and Arthur got married in Maryland
  • Tanco v. Haslam: Challenged Tennessee's refusal to recognize same-sex marriages from other states

The petitioners initially won in all four district court cases. Those courts ruled against same-sex marriage bans. On appeal, the Sixth Circuit upheld the state bans, reversing the lower courts' decisions.

The Supreme Court addressed two questions at the heart of the same-sex marriage debate:

  1. Does the 14th Amendment, which guarantees equal protection and due process, require a state to license a marriage between persons of the same sex?
  2. Does the 14th Amendment require a state to recognize same-sex marriages lawfully licensed and performed in another state?

The Final Word

The U.S. Supreme Court has the final say on constitutional matters. In spring 2015, the Court heard arguments on same-sex marriage.

A majority (5-4) of justices ruled in favor of the plaintiffs. They determined gay, transgender, and lesbian couples had the same rights as heterosexual couples under the Fourteenth Amendment.

Justice Anthony Kennedy delivered the majority opinion. The Court published the following holding in its Obergefell opinion:

The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

States must issue marriage licenses to otherwise eligible couples regardless of sexual orientation. The ruling also requires states to recognize same-sex marriages performed in other states.


Chief Justice Roberts and Justices Alito, Scalia, and Thomas disagreed with the Obergefell majority. They each filed dissenting opinions. Notably, the Chief Justice believed lawmakers in Congress should make decisions about same-sex marriage. And in 2022, Congress enshrined the right to marry into law with the Respect for Marriage Act.

Respect for Marriage Act

In 2022, Dobbs v Jackson Women's Health overturned Roe v. Wade, going against many principles of precedent. In a concurring opinion, Justice Clarence Thomas suggested the Court revisit and possibly overturn prior decisions, including Obergefell. Congress passed the Respect for Marriage Act (RFMA) to protect the civil rights of all Americans to marry the person they love. This includes interracial marriages and same-sex marriages.

President Joe Biden signed the Respect for Marriage Act into law after it overcame hurdles in the Senate. Twelve Republican senators joined their Democrat colleagues in voting for this law.

Cultural Response

The cultural response to Obergefell was unique. The colors of the rainbow lit up the White House in celebration of the decision. Then-President Barack Obama offered his congratulations to Jim Obergefell.

Obergefell is a landmark decision much in the same way that Roe v. Wade is a landmark decision. Both decisions significantly shifted American life and culture.

Get Help

Although marriage equality is the law, some same-sex couples still face obstacles. You should speak to an experienced local family law attorney if you have questions about marriage laws.

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