Same-sex marriage: Obergefell et al. v. Hodges


The U.S. Supreme Court has issued its long-awaited decision on same-sex marriage. By a 5-4 vote, it has ruled that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize the validity of same-sex marriages entered into in other states.

I anticipate there will be cries of “judicial activism,” but this decision really is not an example of that. Here’s why.

The Fourteenth Amendment contains two equally important clauses: (1) a guarantee of Due Process before any State may deprive any citizen of liberty; and (2) a guarantee of Equal Protection of the laws for all citizens. The Court’s previous interpretations of these clauses make the outcome in this case inevitable.

The Court long ago decided that the Due Process Clause protects personal choices in matters that are central to individual dignity and autonomy, including choices like whether, when and with whom to start a family. Eisenstadt v. Baird, 405 U. S. 438 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965). More significantly, the Court decided, in Loving v. Virginia, 388 U. S. 1 (1967), that the freedom to choose whom to marry is a fundamental liberty interest protected against state interference by the Due Process Clause of the Fourteenth Amendment.

Loving invalidated a miscegenation statute (a law prohibiting people of different races from marrying.) There is nothing in the Constitution that says only racial minorities enjoy fundamental liberty rights. The Court made that clear twenty years later when it ruled, in Turner v. Safley, 482 U. S. 78 (1987) that the right to marry is so fundamental that States cannot even deny it to convicted criminals who are serving time in prison.

When a State legislates in ways that burden fundamental rights, it should be required to demonstrate some compelling, non-discriminatory justification for doing so. That means it is not enough to simply say, “Homosexuality is bad” or “It’s against most people’s religion.” If constitutional liberty is to mean anything, it must mean that the majority does not get to impose its will on a minority simply because it is the majority.

That it might be possible to come up with some kind of secular justification also is not enough. At one time, States prohibited the issuance of marriage licenses to “deadbeat dads.” As a secular justification, States cited the need to protect women and children from men who are unable to fulfill responsibilities of fatherhood. The Supreme Court struck down these laws, explaining that something more than a rational basis for discrimination impairing a fundamental right is needed to meet Fourteenth Amendment requirements. The state must demonstrate some compelling need, even greater than the need to ensure that children are adequately provided for financially, to justify discrimination impairing a right as fundamental as the right to marry. Zablocki v. Redhail, 434 U. S. 374 (1978).

States have not been able to articulate a compelling, non-discriminatory need to regulate individual choices of marriage partners in this manner. As a result, they can prevail neither against the Due Process Clause nor against the Equal Protection Clause.

That is really all the Court needed to say to explain its decision. The additional language about “the transcendent purposes of marriage,” or the “long history of disapproval of [gay and lesbian] relationships” working “a grave and continuing harm serving to disrespect and subordinate gays and lesbians” really wasn’t necessary. Constitutional rights shouldn’t have to be preceded by a long history of denial in order to become deserving of enforcement.

It also was not necessary for the Court to smear unmarried parents and their children, saying that children of unmarried parents “know” their families are “lesser” than married families, and that being born to unmarried parents “harms and humiliates” children.

As the hue and cry over this decision mounts (the same-sex part, not the part that apparently seeks to re-stigmatize children born out of wedlock), it would serve people well to keep in mind that the Supreme Court’s job is to interpret the Constitution, not to be everybody’s overlord. Declaring that States can no longer deny marriage licenses to gay and lesbian couples does not mean that your church has to perform gay and lesbian marriages. Your church can continue to preach that homosexuality is an abomination if it wishes to.

Properly understood, the decision actually reaffirms your right to choose to marry a person of the opposite sex without governmental interference. It should come as a relief to know that no State can force you to be either homosexual or single.

The Spiderman case: Kimble v. Marvel Entertainment, LLC

 (U.S. Patent No. 5,072,856)

(U.S. Patent No. 5,072,856)

The biggest question raised by this case is: Why did the U.S. Supreme Court grant review?

The case involves a patented web-shooting mechanism that had been transferred to a Spiderman toy-maker in exchange for a 3% royalty payment. Like all patents, this one was for a twenty-year term. The contract was silent about how long royalties were to be paid under the contract, though. The recipient claimed royalty payments should continue in perpetuity. The toy-maker claimed patents become public domain after twenty years, so royalty payments should end at that time.

In a previous case, Brulotte v. Thys Co.1 the Court had held that a patent holder is not entitled to any royalties for the use of his invention after the patent term has expired even if he has a contract that provides for a longer period of royalty payments. The reasoning was fairly straightforward:

Patent law preempts state laws that conflict with federal patent policy. Agreements for the payment of royalties on public domain inventions conflict with patent law policy. Ergo, it would be unlawful for states to interpret or enforce contracts to the extent they provide for payment of royalties on patented inventions after they have entered the public domain.

Today’s decision in Kimble v. Marvel Entertainment, LLC basically says this case falls squarely within established precedent, i.e., Brulotte, and there’s no good reason for overruling it, so yeah, the same rule still goes.

It wasn’t a complete waste, though. It gave Justice Kagan, who delivered the opinion of the Court, the opportunity to weave numerous Spiderman references into a Supreme Court opinion — mentioning “webs” of ideas and “doing whatever a spider can;” referring to the Court’s decision in this case as “a superpowered form of stare decisis;” and including a quotation from a Spiderman comic in the concluding paragraph: “[I]n this world, with great power there must also come—great responsibility.”

Apart from endearing the Court to Spiderman fans, I suppose the case serves as a useful reminder to patent-owners that royalties may only be collected for the life of the patent, i.e., twenty years. If you think your patent has the potential to earn large profits well beyond that period, then seek a higher percentage royalty for the first twenty years of use.

  1. 379 U. S. 29 (1964)

It’s a Wonderful Blog List

(RKO release poster, 1946)

(RKO release poster, 1946)

Those in the over-thirty crowd probably have many fond and/or maddening memories of flipping channels throughout the Christmas season to decide which network broadcast of It’s a Wonderful Life to watch. The reason it was on so many channels is that television stations could broadcast it royalty-free. So they did. A lot.

Why could they broadcast it royalty-free? Surprisingly, it seemed to be in the public domain. Before the Copyright Act of 1976 established a single-term copyright measured by the life of the author plus 50 years (later extended to 70), copyrights only lasted for a period of 28 years from the date of first publication. They could be renewed for a second 28-year term, but the renewal had to take place during the last year of the original term. If that didn’t happen, then it entered the public domain, meaning that anyone could copy it, distribute it, and broadcast it without having to pay any royalties to the actors, director, writer, or anyone else. The company that acquired the rights to It’s a Wonderful Life neglected to renew the copyright. That’s why television networks began broadcasting it as often as they could, beginning in the 1970’s.

The party came to an end in the 1990’s when the company asserted a claim to the copyright in the underlying literary work on which the movie was based (a pamphlet called The Greatest Gift.) For the past few years, the movie has been licensed only to NBC for television broadcast.

The requirement that copyright renewal must occur during the 28th year of the original term – and only during the 28th year of the original term — has caused quite a wealth of copyrighted matter to enter the public domain accidentally or unexpectedly. Although the Copyright Act of 1976 did away with the renewal system, it did not apply retroactively.

For those with an interest in this arcane topic, here is a non-comprehensive list of movies that appear to have entered the public domain.1

• Angel and the Badman (1947) (failure to renew)2
• The Animal Kingdom (1932) (failure to renew)3
• Algiers (1938) (failure to renew)4
• Beau Brummel (1924) (failure to renew)5
• Beau Ideal (1931) (failure to renew)6
• Behind Office Doors (1931) (failure to renew)7
• Bird of Paradise (1932) (failure to renew)8
• Birth of a Nation (1915) (expired)
• Birth of the B-29 (ca. 1943) (U.S. government work)9
• Blood on the Sun (1945)10
• The Brain That Wouldn’t Die (1962) (published without copyright notice)11
• Brideless Groom (1947) (failure to renew)12
• Carnival of Souls (1962) (published without copyright notice)13
• Charade (1963) (published without full copyright notice)14
• Check and Double Check (1930) (failure to renew)15
• Combat America (1943) (U.S. government work)
• Conspiracy (1930) (failure to renew)16
• The Dance of Life (1929) (failure to renew)17
• Danger Lights (1930) (failure to renew)18
• The Deadly Companions (1961) (missing copyright notice)19
• Debbie Does Dallas (1978)20
• Detour (1945) (failure to renew)21
• Disorder in the Court (1936) (failure to renew)22
• Dixiana (1930) (failure to renew)23
• D.O.A. (1950) (failure to renew)24
• Father’s Little Dividend (1951) (failure to renew)25
• A Farewell to Arms (1932) (failure to renew)26
• The Fight for the Sky (1946) (U.S. government work)
• The General (1927) (failure to renew)27
• The Gold Rush (1925) (failure to renew)28
• Gulliver’s Travels (1939) (failure to renew)29
• Half Shot at Sunrise (1930) (failure to renew)30
• Hemp for Victory (1942) (U.S. government work)
• His Girl Friday (1940) (failure to renew)31
• Hook, Line and Sinker (1930) (failure to renew)32
• The Impossible Voyage (1904) (expired)
• Intolerance (1916) (expired)
• Inside the Lines (1930) (failure to renew)33
• It’s a Wonderful Life (1946) (failure to renew)34
• The Lady Refuses (1931) (failure to renew)35
• A Lady to Love (1930) (failure to renew)36
• Last Clear Chance (1959) (not registered)37
• The Last Time I Saw Paris (1944) (failure to renew)38
• Lawful Larceny (1930) (failure to renew)39
• Letter of Introduction (1938) (failure to renew)40
• Life with Father (1947) (failure to renew)41
• The Little Princess (1939) (failure to renew)42
• The Little Shop of Horrors (1960) (failure to renew)43
• Lonely Wives (1931) (failure to renew)44
• Love Affair (1939) (failure to renew)45
• Malice in the Palace (1949) (failure to renew)46
• March of the Wooden Soldiers (1948) (failure to display copyright notice)47
• McLintock! (1963) (failure to renew)48
• Mr. Imperium (1951) (failure to renew)49
• My Favorite Brunette (1947) (failure to renew)50
• Nanook of the North (1922) (expired)
• Night of the Living Dead (1968) (omission of copyright notice on copies)51
• Nothing Sacred (1937) (failure to renew)52
• The Outlaw (1943) (failure to renew)53
• The Painted Hills (1951) (failure to renew)54
• The Pay-Off (1930) (failure to renew)55
• The Perils of Pauline (1914) (expired)
• The Phantom Carriage (1921) (expired)
• The Phantom of the Opera (1925) (failure to renew)56
• Rain (1932) (failure to renew)57
• Rebecca of Sunnybrook Farm (1917) (expired)
• Reefer Madness (1936) (improper copyright notice)58
• Rock, Rock, Rock! (1956) (failure to renew)59
• The Royal Bed (1931) (failure to renew)60
• Santa Fe Trail (1940) (failure to renew)61
• The Secret Hour (1928) (failure to renew)62
• Sherlock Holmes Baffled: The Enchanted Drawing (1900) (expired)
• Sin takes a Holiday (1930) (failure to renew)63
• Sing a Song of Six Pants (1947) (failure to renew)64
• Sinners in Paradise (1938) (failure to renew)65
• Smouldering Fires (1925) (failure to renew)66
• A Star Is Born (1937) (failure to renew)67
• Swing High, Swing Low! (1937) (failure to renew)68
• Teenagers from Outer Space (1959) (failure to renew)69
• The Terror (1963) (no registration?)70
• Three Came Home (1950) (failure to renew)71
• Three Guys Named Mike (1951) (failure to renew)72
• Till the Clouds Roll By (1946) (failure to renew)73
• Topper Returns (1941) (failure to renew)74
• A Trip to the Moon (1902) (expired)
• Vengeance Valley (1951) (failure to renew)75

Remember that even if a movie is in the public domain now, the literary text on which it is based might not be. And the same is true of any musical compositions performed in a movie. So before you start making your own version of Night of the Living Dead, or selling tickets to a public performance of Debbie Does Dallas, be sure to investigate the copyright status of the musical and literary works embedded in them first.


  1.  This list only applies to the motion picture itself. Other works embedded in it, such as a musical composition, or a book on which the movie is based, may still be protected by copyright.
  2. Pierce, David Legal Limbo: How American Copyright Law Makes Orphan Films (March 29, 2001.) Orphans of the Storm II: Documenting the Twentieth Century. Retrieved January 5, 2012.
  3. Pierce, David. “Forgotten Faces: Why Some of Our Cinema Heritage Is Part of the Public Domain.” Film History: An International Journal 19 (2): 125–43 (June 2007.)
  4. Id.
  5. Id.
  6. Id.
  7. Id.
  8. Id.
  9. Works created by the U.S. government are not protected by copyright.
  10. Pierce (2001), supra note 2.
  11. At one time, publishing copies of a work without the copyright notice on them could cause the work to enter the public domain. This requirement was abolished for works first published on or after March 1, 1989.
  12. Hogan, David J. Three Stooges FAQ: Everything Left to Know about the Eye-Poking, Face-Slapping Head-Thumping Geniuses (2011).
  13. Blake, Marc. Writing the Horror Movie 91 (2013)
  14. Pierce (2007), supra note 3.
  15. Id.
  16. Pierce (2007), supra note 3.
  17. Id.
  18. Id.
  19. Erickson, Hal. “Early Salvos from ‘Bloody Sam’: New DVDs, Peckinpah’s Deadly Companions and Major Dundee,” New York Times (May 10, 2013)
  20. M & A Associates v. VCX, 657 F. Supp. 454 (E.D. Mich. 1987)
  21. Herzogenrath, Bernd. The Films of Edgar G. Ulmer 151 (2009).
  22. Hogan, supra note 12.
  23. Pierce (2007), supra note 3.
  24. Researching the Copyright Status of a Work,
  25. Pierce (2007), supra note 3.
  26. Id. Remakes of this movie may not be in the public domain.
  27. Fishman, Stephen. The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More 174-180 (5th ed. 2010.)
  28. Id.
  29. Miller, John M. “Mr. Bug Goes to Town aka Hoppity Goes to Town,” Turner Classic Movies (June 14, 2015); Kehr, David, “Classics From Disney and a Lilliputian Competitor,” New York Times (March 6, 2009.) Retrieved October 26, 2013.
  30. Pierce (2007), supra note 3.
  31. Fishman, supra note 27.
  32. Pierce (2007), supra note 3.
  33. Id.
  34. Id.
  35. Id.
  36. Id.
  37. Prelinger, Rick. The field guide to sponsored films 52 (National Film Preservation Foundation 2006.)
  38. Researching, supra note 24.
  39. Pierce (2007), supra note 3.
  40. Id.
  41. Erickson, Hal, “Life with Father Overview,” New York Times (June 14, 2015)
  42. Pierce (2007), supra note 3.
  43. Fishman, supra note 27; Pierce (2007), supra note 3.
  44. Pierce (2007), supra note 3.
  45. Id.
  46. Hogan, supra note 12.
  47. Pierce (2007), supra note 3.
  48. Fishman, supra note 27 at 337; “Court Rules for ‘Goodtimes’ in McLintock! Case,” Billboard 73 & 82 (May 14, 1994)
  49. Pierce (2007), supra note 3.
  50. Pierce (2001), supra note 3.
  51. Boluk, Stephanie; Lenz, Wylie. Introduction: Generation Z, the Age of Apocalypse. In Boluk, Stephanie; Lenz, Wylie. Generation Zombie: Essays on the Living Dead in Modern Culture 5 (2011).
  52. Fishman, supra note 27.
  53. Pierce (2007), supra note 3.
  54. Id.
  55. Id.
  56. Id.
  57. Pierce (2001), supra note 2.
  58. Anderson, Patrick, High in America: the true story behind NORML and the politics of marijuana 101 (1981); Shaye, Robert. Graduation 2003 (May 22, 2003)
  59. Pierce (2007), supra note 3.
  60. Id.
  61. 7 Filmmakers Newsletter (Suncraft International Inc. 1973)
  62. Pierce (2007), supra note 3.
  63. Id.
  64. Hogan, supra note 12.
  65. Pierce (2007), supra note 3.
  66. Id.
  67. Id.; Fishman, supra note 27. Remakes may not be in the public domain.
  68. Pierce (2007), supra note 3.
  69. Fishman, supra note 27.
  70. Ray, Fred Olen, The New Poverty Row: Independent Filmmakers as Distributors 51 (1991).
  71. Erickson, Hal, “Three Came Home Overview,” New York Times (June 14, 2015)
  72. Pierce (2007), supra note 3.
  73. Id.
  74. Id.
  75. Id.