Classifying Arguments Activity

Classifying Arguments Activity—Answer Key

Obergefell v. Hodges (and consolidated cases) (2015)
After reading the history, background, facts, issues, constitutional provisions, and Supreme
Court precedents, read each of the arguments below. These arguments come from the briefs
submitted by the parties in this case. If the argument supports the petitioner, Obergefell (one of the
petitioners challenging same-sex marriage bans), write O on the line after the argument. If the
argument supports the respondent, Hodges (representing the states support of the laws), write H on
the line after the argument. Work in your groups. When you have finished, determine which
argument for each side is the most persuasive and be ready to give your reasons.

Arguments

1. These cases are not about hate or discrimination. They are about democracy. There
are many definitions of marriage in the United States, and reasonable people
disagree about which one should prevail. The democratic process exists to sort
these very issues out. More than 70 million votes have been cast to decide this
issue in the states. While 11 states have expanded their definition of marriage
through these processes, 39 others have not. H

2. As important as democracy is, people’s rights should not be put up to a vote.

Rights are inherent and protected, and the majority cannot vote to take them away. O

3. Once the courts step in and take the democratic process away from the voters, the
people forever lose the power to debate and decide the issue for themselves. H

4. No one alive when the 14th Amendment was ratified would have understood it to
prohibit discrimination on the basis of sexual orientation. It would be a radical
departure for the Court to rule that it now requires states to license same-sex
marriage. H

5. Opponents say that marriage has excluded same-sex couples for hundreds of years.
But these laws and constitutional amendments are no more than 20 years old.
Even more, a long history of discrimination and popular support for
discriminatory laws are not sufficient reasons to continue discriminating. O

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6. Bans on same-sex marriage should be subject to heightened scrutiny (either strict

or intermediate scrutiny) because sexual orientation is a classification like gender or
race. Sexual orientation is an unchangeable characteristic that does not affect an
individual’s ability to contribute to society. Gays and lesbians have historically
faced and continue to face severe discrimination—in more than half the states they
have no protection from employment or housing discrimination. Under
heightened scrutiny, the marriage bans are unconstitutional: the states have no
important or compelling interest in preventing same-sex couples from marrying. O

7. The laws and constitutional amendments banning same-sex marriage were not a
sudden or new policy—they merely codified longstanding and widely held social
norms about what constituted marriage. H

8. These families—including their children—are deprived of the status, dignity, and

material and legal protections that marriage brings, solely because of their sexual
orientation. O

9. A major principle of federalism is that many decisions are left to the states—
including the regulation of marriage. One benefit of this system is that it provides
“laboratories of democracy,” meaning that states can experiment with different
policies and other states can learn from those experiments. Allowing states to
choose for themselves is, in fact, the only way we would have obtained same-sex
marriage anywhere in the country. A decade ago a few states began to allow same-
sex marriage, and the system permitted that. H

10. Even if the rational basis standard were applied, the marriage bans are still
unconstitutional. The only purpose of these laws and state constitutional
amendments is to disadvantage gays and lesbians. As stated in Romer, if the sole
purpose of a law is to harm an unpopular minority group, it is unconstitutional. O

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Obergefell v. Hodges (and consolidated cases) (2015)

Argued: April 28, 2015
Decided: June 26, 2015

History
In 2013, the Supreme Court ruled that the federal Defense of Marriage Act, which had defined
marriage as being only between a man and woman, was unconstitutional. The justices said that the
federal government must recognize, for purposes of federal law, same-sex marriages from the states
where they were legal. In the wake of that decision, same-sex couples all over the country filed
lawsuits in states where same-sex marriage was banned. Many district courts ruled that state laws and
constitutional amendments that prohibit same-sex marriage violate the U.S. Constitution—often
citing the Supreme Court’s 2013 decision. Other judges ruled exactly the opposite. They said that
these bans, imposed through democratic processes, were valid.
The U.S. Supreme Court decided to hear four of the cases and consolidated them into a single oral
argument. The cases raised two issues for the Court to decide: 1) whether states must themselves
license same-sex marriages and 2) whether states must recognize valid same-sex marriages
performed in other states. Those issues invoke many legal concepts—chief among them are
federalism and the 14th Amendment.

Background
Federalism is the principle that the national government and state governments share powers. Some
powers are delegated to the national government, some are reserved for state governments, and
some powers are shared. This means that states generally can choose different policies about many
issues, such as which activities are crimes, how to license drivers, what to teach in public schools,
and more provided they are within the limits of the Constitution and federal statutes.
The 14th Amendment to the U.S. Constitution was adopted in the wake of the Civil War and says
that states must give people equal protection under law. This means that state laws must apply
equally to all people who are in similar situations, unless the state has a reason for making the
distinction. When deciding whether or not a law violates the guarantee of equal protection, courts
must examine who is affected by that law. Due to the United States’ history of discrimination, the
courts are more suspicious of laws that affect people based on their race or gender than laws that
discriminate based on certain other classifications, like wealth or age.
The Supreme Court has described three categories for reviewing laws that treat people unequally:
− Strict scrutiny
This standard is used primarily for laws that classify people based on race, national origin, or
citizenship status. The Court has placed these classifications together because they are based
on characteristics that people cannot change, and because America has a long history of

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discriminating against people based on these traits. Laws that treat people differently based
on these classifications must:
a. serve a compelling government interest;
b. be “narrowly tailored,” meaning that achieving the compelling government interest is
the main purpose of the law, and not just a side effect; and
c. be the least restrictive way to serve the government’s interest, meaning that it meets
the goal in a way that limits peoples’ rights the least.
− Intermediate scrutiny
This standard has been used for laws that treat people differently based on their gender. For
these laws, the government must show that having the law is closely connected to an
important government interest.
− Rational basis
This standard has been used for classifications like age and wealth. Under this standard, all
that is required is a rational relationship between the law and a legitimate government interest.
Most laws are upheld under this standard.

Facts
In all four cases, the petitioners were same-sex couples who either wanted to get married in their
state but were prohibited from doing so by a state law or constitutional amendment, or they were
same-sex couples who were married lawfully in another state and wanted their home state to
recognize that marriage as valid. In one case, the petitioners included a married same-sex couple
from New York who adopted a child from Ohio. Since Ohio would not recognize their marriage,
the state refused to amend the child’s birth certificate to list both parents, as it would for a married
opposite-sex couple.
Kentucky, Michigan, Ohio, and Tennessee were the four states defending their bans on same-sex
marriage and bans on recognizing same-sex marriages performed in other states. Between 1996 and
2005, those states and many others enacted laws and passed constitutional amendments defining
marriage as a union of one man and one woman. Each of the four states had a law passed by its
state legislature and a state constitutional amendment approved directly by the voters. The same-sex
couples who were not allowed to marry argued that they were prevented from receiving state
benefits for married couples (and their children), including access to a spouse or parent’s health
insurance; the power to make decisions for each other or visit each other in a medical emergency;
eligibility for social security benefits, survivor benefits, and tax benefits; and the ability to claim
alimony or child support should a marriage end.
The petitioners won in the district courts in their various states. On appeal, however, the U.S. Court
of Appeals for the Sixth Circuit reversed and upheld the state laws. The petitioners asked the
Supreme Court of the United States to hear the case, and the Court agreed.

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Issues
Does the 14th Amendment require a state to license same-sex marriages?
Does the 14th Amendment require a state to recognize a same-sex marriage that was lawfully licensed
out-of-state?

Constitutional Provisions and Supreme Court Precedents

− 10th Amendment to the U.S. Constitution

“The powers not delegated to the United States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the people.”

− Equal Protection Clause, 14th Amendment to the U.S. Constitution

“No state shall … deny to any person within its jurisdiction the equal protection of the
laws.”

− Due Process Clause, 14th Amendment to the U.S. Constitution

“nor shall any state deprive any person of life, liberty, or property, without due process of
law”

− Full Faith and Credit Clause, Article IV of the U.S. Constitution

“Full faith and credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress may…prescribe the Manner in which
such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

− Loving v. Virginia (1967)

Virginia had a law that made it a crime for any “white person [to] intermarry with a colored
person.” Violating that law was punishable by one to five years in prison. The Supreme
Court decided that the law violated the Equal Protection Clause. The Court said any law that
contains racial classifications must be subjected to strict scrutiny. The Court decided that this
law was not trying to achieve an important or reasonable objective, as its only purpose was
to divide people by race and maintain white supremacy. The Court also said that marriage is
a “fundamental right.”

− Baker v. Nelson (1972)

A gay couple was denied a marriage license by a Minneapolis town clerk. The Minnesota
Supreme Court ruled that the Constitution does not protect a fundamental right to same-sex
marriage. The U.S. Supreme Court upheld the decision with a one-line ruling: “dismissed for
want of a substantial federal question,” meaning that the Court at that time did not think

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that there was even a serious argument to be made that the 14th Amendment protects same-
sex marriage.

− Romer v. Evans (1996)

In 1992, the citizens of Colorado amended their state constitution to forbid any law or
government action that would protect people who are gay and lesbian from discrimination.
The Supreme Court decided that this amendment violated the Equal Protection Clause.
They said that the law failed even the lowest of standards—the rational basis test—because
it did not have a rational relationship to a legitimate state interest. The Court decided that
the only interest in passing this amendment was a desire to harm an unpopular group, and
that is not a legitimate governmental interest.

− Windsor v. United States (2013)

The Court ruled that the Defense of Marriage Act (DOMA) was unconstitutional because it
discriminated against same-sex couples by preventing the federal government from
recognizing their marriages, even though some states had expressly chosen to license those
marriages. Moreover, the basic intent of DOMA was to express disapproval of state
sanctioned same-sex marriage. This was not a legitimate purpose. The Court did not decide
which level of scrutiny should be used to evaluate laws that discriminate based on sexual
orientation.

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