Supreme Court Issues Historic Ruling Recognizing Nationwide Freedom to Marry

The United States Supreme Court has ruled -- in a case where Kramer Levin had filed an amicus brief -- that same-sex couples have a constitutional right to marry. The ruling, issued in Obergefell v. Henry and three related cases, caps a remarkable two-year period since United States v. Windsor in which the country moved to a strong legal and cultural consensus in support of a universal freedom to marry for all couples. The Court squarely included LGBT people in the fundamental right to marry, observing that the exclusion of lesbian and gay couples “serves to disrespect and subordinate them.”

Kramer Levin filed its brief on behalf of numerous major religious organizations and nearly 2,000 individual faith leaders – including leadership of the Episcopal Church, the United Church of Christ, the Unitarian Universalist Association, and Conservative, Reform and Reconstructionist Judaism, among others – supporting recognition of the freedom to marry for same-sex couples. The brief documented the growing trend among mainstream U.S religions towards respect for same-sex couples and their relationships, inclusion of same-sex couples in religious marriage, and support for equality in access to civil marriage. The brief concluded that recognition of the freedom to marry is consistent with fundamental principles of both equal protection and religious freedom respected and embraced by a wide range of religious actors.

The Kramer Levin brief also responded to arguments made before the Sixth Circuit by opponents of the freedom to marry premised on religious views about the definition of marriage and amorphous concerns that recognizing marriage equality would result in a threat to religious liberty. The brief argued that eliminating discrimination in civil marriage would not impinge upon religious doctrine, conscience or practice; that it would not create an undue burden on religious freedom for organizations and individuals functioning in the commercial realm; and that giving legal weight to religious views on marriage would unconstitutionally enshrine religious doctrine in civil law and improperly favor some religious views over others.

Justice Kennedy’s opinion for the Court embraced many of the arguments in Kramer Levin’s brief. The Court noted that religions remain free to define marriage in any way they want and that disagreements between and among religious actors may, under the First Amendment, play out in an “open and searching debate.” The Court held that this did not affect the obligation of every state to provide equal access to marriage as a civil institution.

The major leaders and institutions signing on to the brief included the President of the House of Deputies of the Episcopal Church and the Episcopal Bishops of Kentucky, Michigan, Ohio and Tennessee; the General Synod of the United Church of Christ; the Union for Reform Judaism; the Unitarian Universalist Association; the United Synagogue of Conservative Judaism; Covenant Network of Presbyterians; and Muslims for Progressive Values, among others.

The brief echoed themes in similar briefs filed by Kramer Levin in the 2013 cases of U.S. v. Windsor, in which the Court ultimately struck down a key provision of the Defense of Marriage Act (“DOMA”), and Hollingsworth v. Perry, in which the Court dismissed an appeal challenging the decision striking down California’s Proposition 8.

The Obergefell brief concluded that “civil recognition of same-sex relationships through lawful marriage is fundamentally consistent with the religious pluralism woven into the fabric of American law, culture and society” and that reversing the 6th Circuit decision and establishing the freedom to marry nationwide, as the Court has now done, would “recognize the creative tension inherent in religions’ interface with our own pluralistic, changing society while confirming that all, regardless of faith, are entitled to equal protection under the law.”

"The remarkable evolution of mainstream religious views on the freedom to marry reflects broad changes in society at large," said Kramer Levin partner Jeffrey S. Trachtman, counsel of record on the brief. "The Supreme Court's decision confirmed a clearly emerging national consensus cutting across many segments of society that it was time to resolve this issue nationally and ensure fairness for all couples."

The Kramer Levin team that drafted the brief includes Trachtman and fellow Litigation partner Norman C. Simon and associates Jason M. Moff and Kurt M. Denk, with assistance from law clerks Joel Pietrzak, Catherine Hoge and Harold Robinson. Former Kramer Levin associate Joshua Glick made important contributions to earlier versions of the brief.

Kramer Levin has played a leading role in pro bono LGBT rights litigation for nearly two decades. The firm has previously submitted amicus briefs in Boy Scouts v. Dale and Lawrence v. Texas, two landmark LGBT rights cases before the Supreme Court; the two 2013 marriage cases; and several subsequent Court of Appeals cases on marriage equality. The firm also served as co-counsel in Hernandez v. Robles, which sought equal marriage rights under the New York constitution. 

Click here for the full brief. 

Click here for the Supreme Court's decision.