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  • Sasha Issenberg

April 28, 2015: Supreme Court hears marriage case


The U.S. Supreme Court heard arguments in Obergefell v. Hodges, the case that would determine whether same-sex couples had a right to marry nationwide.

The appeal bore the name of Jim Obergefell, a widower who sued his home state of Ohio after struggling to be listed on his husband’s death certificate as a surviving spouse. (The two men had been married in Maryland.) In their refusal to do so, state officials cited a 2004 ballot measure that amended the state constitution to specify “only a union between one man and one woman may be a marriage valid in or recognized by this state.” Obergefell challenged the provision’s constitutionality, as other same-sex couples were doing with similar bans in the three other states (Kentucky, Michigan and Tennessee) which comprise the Sixth Circuit. In November 2014, a three-judge panel upheld the bans, with Judge Jeffrey Sutton writing for the majority that the U.S. Constitution couldn’t be construed to “require the States to change the definition of marriage.” Every other appellate court that had ruled on the matter had reached an opposite conclusion, creating the type of “circuit split” that ensured the matter would need to be resolved on appeal to the U.S. Supreme Court.

The Supreme Court scheduled oral arguments for the following April in the consolidated cases of Obergefell v. Hodges, DeBoer v. Snyder, Tanco v. Haslam and Bourke v. Beshear. Mary Bonauto, the Boston-based attorney whose successful lawsuit against Massachusetts had brought the first legal same-sex marriages to the United States, was selected to argue for the appellants. This time Bonauto was backed in court by the United States government, in the form of solicitor general Don Verrilli.

Both Bonauto and Verrilli pitched their arguments at one justice in particular: Anthony Kennedy, who had written for the majority in court’s three previous landmark gay-rights opinions and represented the swing vote on a wider variety of issues. The attorneys paid tribute to Kennedy’s past gay-rights rulings, played to his interest in international law, sprinkled knowing allusions to his writings and showed respect for his preference for nebulous concepts like “respect” and “dignity” rather than the more rigorous system of classification employed by anti-discrimination litigators.

“The decision to leave this to the political process is going to impose enormous costs that this Court thought were costs of constitutional stature in Windsor,” said Verrilli, in one typical passage. “Thousands and thousands of people are going to live out their lives and go to their deaths without their States ever recognizing the equal dignity of their relationships,”


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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