The Fourteenth Amendment of the U.S. Constitution has significantly influenced American society, particularly regarding marriage equality. Key Supreme Court cases demonstrate how this amendment has been interpreted to protect fundamental rights and ensure equal treatment under the law. From Loving v. Virginia to Obergefell v. Hodges, these landmark decisions highlight the enduring significance of the Fourteenth Amendment in shaping our legal landscape.

The Fourteenth Amendment: Text and Interpretation

The Fourteenth Amendment states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Due Process and Equal Protection Clauses are central to marriage equality. The Due Process Clause protects against arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Equal Protection Clause demands that individuals in similar circumstances be treated equally by the law.

Key Supreme Court cases interpreting the Fourteenth Amendment include:

• Loving v. Virginia (1967): Struck down state laws banning interracial marriage.
• Zablocki v. Redhail (1978): Examined restrictions on marriage for noncustodial parents.
• Turner v. Safley (1987): Addressed marriage restrictions for inmates.
• Obergefell v. Hodges (2015): Recognized same-sex marriage as a constitutional right.

The Respect for Marriage Act emerged as a safeguard after the Supreme Court's Dobbs v. Jackson decision. This Act requires states to recognize same-sex marriages performed in other states and grants federal recognition. However, it doesn't codify Obergefell, leaving the constitutional right to same-sex marriage in a precarious position should the Court overturn it.¹

The foundation of LGBTQ rights rests on the Fourteenth Amendment's promise of equal protection and due process. While the Respect for Marriage Act introduces new layers of security for same-sex couples, the broader legal and social battles continue to evolve around these fundamental constitutional principles.

Romer v. Evans: A Landmark Case

Romer v. Evans (1996) marked a significant milestone for LGBTQ rights, setting a precedent in the interpretation of the Equal Protection Clause. The case addressed a Colorado state constitutional amendment that prohibited all legislative, executive, or judicial action designed to protect individuals from discrimination based on their sexual orientation.

In a 6-3 decision, the Court, led by Justice Anthony Kennedy, struck down Amendment 2, deeming it unconstitutional. Kennedy's majority opinion emphasized that Amendment 2 failed even the most lenient standard of judicial review, known as "rational basis review."

"[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

Romer v. Evans reaffirmed the Equal Protection Clause as a strong shield against discriminatory practices. By identifying and invalidating laws born of improper animus, the Court set a powerful precedent that would inform its decisions in later cases, including United States v. Windsor and Obergefell v. Hodges.

This case exemplifies how deeply entwined the Fourteenth Amendment is with the ongoing fight for equal rights. By laying the judicial groundwork to challenge and overturn laws that institutionalize discrimination, Romer v. Evans became a critical reference point for subsequent LGBTQ rights litigation.²

United States v. Windsor: Federal Recognition of Same-Sex Marriage

In United States v. Windsor (2013), the Supreme Court addressed the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which defined marriage for all federal purposes as a union between one man and one woman. The case revolved around the denial of Edith Windsor's federal estate tax exemption claim after the death of her legally married same-sex spouse, Thea Spyer.

The Supreme Court, in a 5-4 decision penned by Justice Kennedy, ruled that Section 3 of DOMA was unconstitutional. This decision was premised on the principles of due process and equal protection under the Fifth Amendment, which closely mirrors the Fourteenth Amendment's protections.

Key points from the Windsor decision:

• DOMA's exclusionary definition harmed individuals and their families
• The law undermined the right to equal recognition and treatment
• It imposed a stigma on same-sex marriages lawfully recognized by states

This landmark decision paved the way for federal recognition of same-sex marriages, impacting over 1,000 federal statutes and programs tied to marital status. Post-Windsor, legally married same-sex couples began enjoying federal benefits previously denied, such as tax exemptions, Social Security survivor benefits, and immigration rights.³

Windsor served as a crucial precedent for subsequent legal battles, including Obergefell v. Hodges. It signaled a turning point where discriminatory definitions of marriage were increasingly seen as incompatible with constitutional principles.

Obergefell v. Hodges: The Right to Marry

In Obergefell v. Hodges (2015), the Supreme Court extended the right to marry to same-sex couples nationwide. The case emerged from legal challenges in several states where bans on same-sex marriage were being contested. Central to the Court's reasoning was the recognition that marriage is a fundamental right protected by the Fourteenth Amendment's Due Process and Equal Protection Clauses.

Justice Anthony Kennedy, writing for the majority in a 5-4 decision, articulated the Court's reasoning through four central principles:

1. Marriage is inherent to individual autonomy.
2. Marriage supports a union of committed individuals.
3. Marriage safeguards children and families.
4. Marriage is essential to the nation's social order.

Kennedy declared:

"The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity."

The broader implications of Obergefell v. Hodges for marriage equality are profound:

• Invalidated all state laws prohibiting same-sex marriage
• Required states to recognize same-sex marriages performed legally in other jurisdictions
• Reinforced that the Fourteenth Amendment's protections encompass personal liberty, identity, and equal legal recognition

In sum, Obergefell v. Hodges solidified marriage equality as a constitutional guarantee, anchoring it firmly within the framework of due process and equal protection. This case exemplifies the enduring power of the Constitution to evolve and encompass the broadening recognition of fundamental human rights for all Americans.⁴

The Respect for Marriage Act: Legislative Backstop

The Respect for Marriage Act of 2022 serves as a legislative safeguard for marriage equality, especially in light of concerns about potential changes to Obergefell v. Hodges. This bipartisan act creates a backstop to protect same-sex marriages across states and at the federal level.

Key provisions of the Act include:

• Requiring all states to recognize same-sex marriages legally performed in other states, preventing a patchwork system where marital status changes based on location.
• Repealing the Defense of Marriage Act (DOMA), which had allowed states to refuse recognition of same-sex marriages and barred federal recognition. This aligns federal policy with principles of equal treatment.

However, the Act has limitations. It does not codify Obergefell v. Hodges, leaving the constitutional right to same-sex marriage vulnerable to potential judicial reversal. If Obergefell were overturned, the legality of same-sex marriages would revert to state law, potentially reviving older statutes banning such unions.

The Act's passage demonstrates bipartisan recognition of the need to protect same-sex marriages, even if the Supreme Court revisits its prior rulings. However, it falls short of securing a universal right to same-sex marriage across all states, highlighting the ongoing need for vigilance in LGBTQ rights advocacy.

Experts like Mary Bonauto of GLBTQ Legal Advocates and Defenders note that while valuable, the Act doesn't address broader issues faced by the LGBTQ community, such as anti-discrimination protections or legislative attacks against transgender individuals.

These gaps underscore the need for continued efforts to achieve full equality under the law for LGBTQ individuals.

Future Challenges and Legal Landscape

The future of marriage equality faces uncertainties influenced by the current legal landscape and recent Supreme Court decisions. The Dobbs v. Jackson ruling, which overturned Roe v. Wade, sets a precedent that could lead to revisiting other landmark decisions, including Obergefell v. Hodges. Justice Clarence Thomas's concurring opinion in Dobbs explicitly suggested reconsidering cases like Obergefell.

If Obergefell were overturned, marriage regulation would likely return to the states, potentially creating a fragmented legal framework. The Respect for Marriage Act provides some federal protection but cannot ensure nationwide uniform access to marriage.

The broader context of LGBTQ rights presents ongoing challenges:

1. A patchwork of state laws governs issues such as non-discrimination in employment, housing, and public accommodations.
2. The Equality Act, which would provide comprehensive federal anti-discrimination protections, remains stalled in the Senate.
3. Ongoing legal cases related to transgender rights, such as those challenging bans on gender-affirming healthcare for minors and restrictions on transgender participation in sports, underscore the need for continued advocacy.

The Fourteenth Amendment remains crucial in future LGBTQ rights battles. Legal advocates must continue leveraging substantive due process and equal protection principles to challenge discriminatory laws.

Strategies must adapt to the evolving composition of the judiciary. While the current Supreme Court's conservative majority poses challenges, lower federal courts and state courts play critical roles in building favorable rulings.

Public opinion and legislative actions at state and local levels significantly influence the legal landscape. Continued public education and advocacy are crucial in shifting societal attitudes and building broad-based support for LGBTQ rights.

As future legal battles unfold, how might the principles of due process and equal protection continue to guide the quest for enduring justice and equal rights?

The Fourteenth Amendment remains a cornerstone of American constitutional law, safeguarding fundamental rights and promoting equality. Its principles have been pivotal in advancing marriage equality and protecting individual liberties. As we continue to address future legal challenges, the enduring promise of the Fourteenth Amendment will guide our pursuit of justice and equal protection for all.¹