I know at the end of my last post I said we would be jumping into an ongoing series on water law and water quality, but I’m going to put that on hold until next time, and discuss something a little more timely. This will be the first post in a series I’ll call “Social Justice Moments,” where I’ll take a brief break from environmental law and discuss an important and timely social justice legal story. This is also also as an opportunity to discuss the work that the talented attorneys in my law firm do every day, and how we are reacting to this decision. I’m aware that this doesn’t quite fit the theme of environmental law either, but this is also a forum to discuss social justice and commerce more generally. Therefore, if you’re coming purely for the environmental law discussions, you should check back next time.
Obergefell v. Hodges
On Friday June 26, 2015, the United States Supreme Court released its decision in the case of Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. In the controversial ruling, the Court found that the right to marry in the United States is a fundamental right protected for all people by the Constitution. Let’s unpack very quickly what the Court is actually saying here and why this is an important principle for commerce law in the U.S.
Everyone learns in high school social studies classes that the Constitution consists of two distinct parts. The first is the general body of the Constitution, which consists of seven “Articles”. Among the functions of the Articles is to outline the basic format and function of the 3 branches of government, and how they should interact with and restrain each other. The other portion of the Constitution is what we know as the Bill of Rights, being the first 10 amendments to the Constitution, and then all of the amendments made subsequent to 1787. The rights that are discussed in the Bill of Rights and its amendments are not rights given by the Constitution, but are rights that the government acknowledges that it cannot take away from the people.
This is an important legal principle because it puts the responsibility on the people to argue what the bounds of those protected “fundamental” rights are. A whole area of Supreme Court precedent deals with interpretation of the 14th Amendment. The 14th Amendment is seen as legally protecting these fundamental due process rights for all U.S. citizens. Among the fundamental rights that have been successfully recognized through the language of the Constitution are the right to travel between states, the right to use contraception, and the right to marry persons of other races. If it’s becoming clear how the Court found in Obergefell that such a fundamental right also exists for same-sex couples, then a gold star for you; you’re practically a Constitutional law scholar.
Perhaps one of the most famous recognitions of marriage as a fundamental right by the U.S. Supreme Court came in the case of Loving v. Virginia. In Loving, the Court was asked to rule on the Constitutionality of a Virginia ban on interracial marriages. The mere fact that a white man married a black woman placed the two in danger of a one-year jail sentence, which was reduced to a Court-Ordered exile from Virginia for 25 years. The Court reiterated earlier case law that found marriage to be one of the “basic civil rights of man,” and found that the “freedom to marry, or not marry, a person of another race resides within the individual.” The modern Supreme Court used these same principles as applied to interracial marriage bans, and found that same-sex couples are no less protected in their fundamental right to marry and have their unions recognized under the law. Of course there are those who criticize the decision on and off the Supreme Court, but that is the nature of our democratic system. At each phase of our national development there has been a series of cases which, when the decisions are released, polarize and divide the country. Each time the parties sympathetic to the dissent complain and protest. But, each time the smoke clears and the nation continues moving forward stronger and more united than before. I don’t foresee this time being any different. If anything, I think that this decision will be more of a minor hiccup, in it’s negative backlash, compared to some of the other major decisions of the past 100 years.
Beyond my mere support for the decision, I would like to point out how this type of decision will come to affect the populations of people who can now validly marry, or simply have their valid marriages recognized at home. When a couple marries there are many implications for their finances, property, and respective futures. Married couples in this country are given many benefits simply for this status, including the ability to cover spouses on health insurance, recognition of inheritance, and in some states, the automatic co-ownership of property. In Pennsylvania for instance, all property acquired during the course of a marriage is automatically transferred into the ownership of both spouses, unless they both show an intention to keep the property separate. This implication is important if the couple chooses to divorce or if one of them dies without a valid will in place. This is just one example where legal planning for your future would be an important consideration for all couples, regardless of gender or sexual orientation.
At the Commerce Law Group, LLC, we are proud of the decision of SCOTUS, and continue to support clients past, current, and future, regardless of sexual orientation. I for one am excited to work with same-sex couples through any of the legal issues discussed above and to work to ensure that the rights of all people are protected and recognized under the laws of this great country.
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