Same-sex marriage: A constitutional tidal wave?

Development on a huge scale has taken place across the Atlantic as same-sex marriage was legalised on a national level by the US Supreme Court on 26 June 2015 in a 5-4 decision.

As of this date, state bans on same-sex marriage are unconstitutional and all states must now grant marriage licences to same-sex couples and recognise marriages which have taken place in other states.

Obergefell v Hodges

The US does have a long history of campaigning for gay rights, and over the years public support for same-sex marriage has grown. In recognition of this public sentiment and the change in social attitudes towards same-sex relationships, many states started to lift state-level bans on same-sex marriage or, at the very least, provide for same-sex unions (if the process was not already in place) following a 2004 ruling allowing same-sex marriage in Massachusetts, the first US state to do so.

The debate has populated discussion for much of the last ten years and once again came to the fore this year, when four cases were heard together before the Supreme Court (under the heading of Obergefell v Hodges) on the question of whether states may constitutionally ban same-sex marriages or refuse to recognise same-sex marriages performed in other states.

The court ruled that the denial of marriage licences and non-recognition of same-sex couples violates the fourteenth amendment of the US Constitution (which addresses citizenship rights and equal protection).

Prior to the decision in Obergefell, 37 out of 50 states in the US issued marriage licences to same-sex couples. Obergefell essentially extends this so all states must now issue marriage licences to same-sex couples and recognise marriages that have taken place in other states. Associated legal rights and benefits available to heterosexual married couples also extend to same-sex married couples as a result of this decision.

Changing social attitudes

As one would expect, the decision in Obergefell has caused controversy throughout the US. The majority accept that the definition of the 'modern family' has changed and that the laws of the land should adapt to accommodate this. According to a recent Gallup poll, 60 per cent of Americans were in favour of same-sex marriage. This is in stark contrast to just 27 per cent in 1996, showing the true extent of changes in social attitudes to same-sex relationships.

This sentiment, however, is not felt throughout the US. Opponents of same-sex marriage view it as an attack on their religious belief and have voiced concerns over the changes to the 'traditional family unit', arguments which have undeniably played a role in most (if not all) countries where same-sex marriage has been legalised.

In Alabama, in opposition to the ruling, some judges have refused to issue marriage licences altogether, so as to avoid any accusation of discrimination. However, this freeze on issuing marriage licences is simply not sustainable.

The ruling has also seen the resignation of clerks in other states who claim the decision goes against their moral and ethical beliefs.

The state of Kentucky is the first to have a case brought by the American Civil Liberties Union against a clerk who seeks to argue that it is against her Christian beliefs to issue marriage licences to same-sex couples.

The future

As the legal landscape and social trends in this field shift towards greater equality, commentators consider that South America will be next to jump on the bandwagon with legalisation of same-sex marriage set to be on the agenda in this region.

At present, Brazil, Argentina, and Uruguay already provide for same-sex marriage. Chile, Ecuador, and Colombia recognise a form of civil union or registered partnership and there has been considerable progress in both Chile and Colombia in 2015 towards legalising same-sex marriage in the near future.

It remains to be seen whether this change in the legal and social landscape of the US will permeate throughout the world, and whether other countries will now follow suit. SJ

Carla Ditz is an associate solicitor at Family Law in Partnership