Dissent in Obergefell v. Hodges
576 U.S. 644 (2015) (2015) · Supreme Court of the United States
Obergefell v. Hodges established that same-sex couples have a fundamental right to marry under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The decision required all states to license and recognize same-sex marriages, making marriage equality the law of the land.
What was the dissent in Obergefell v. Hodges?
Chief Justice Roberts dissented, arguing that the majority was not interpreting the Constitution but redefining marriage, a question that should be left to democratic processes. Justice Scalia dissented sharply, calling the opinion a threat to American democracy. Justice Thomas dissented, arguing that the Due Process Clause protects only against government restraints on liberty, not entitlements to government benefits.
Case Overview
Facts
Groups of same-sex couples from Michigan, Kentucky, Ohio, and Tennessee sued their respective states, challenging the states' definitions of marriage as between a man and a woman. Some plaintiffs sought the right to marry in their home states; others sought recognition of marriages performed in other jurisdictions. James Obergefell, the lead plaintiff, had married his terminally ill partner John Arthur in Maryland and sought recognition of their marriage on Arthur's Ohio death certificate.
Majority Holding
The Court held 5-4 that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. All states must license and recognize same-sex marriages. Justice Kennedy's majority opinion identified four principles and traditions that demonstrate the right to marry applies with equal force to same-sex couples.
Majority Reasoning
Justice Kennedy identified four principles supporting the right: (1) the right to personal choice regarding marriage is inherent in individual autonomy; (2) the right to marry supports a two-person union unlike any other in its importance; (3) marriage safeguards children and families and draws meaning from related rights of childrearing, procreation, and education; and (4) marriage is a keystone of the nation's social order. Kennedy held that the Due Process and Equal Protection Clauses are interrelated and that each strengthened the case for the other. The Court rejected the argument that the democratic process should be allowed to determine the issue, holding that fundamental rights cannot be submitted to a vote.
The Dissenting Opinion
Chief Justice Roberts dissented, arguing that the majority was not interpreting the Constitution but redefining marriage, a question that should be left to democratic processes. Justice Scalia dissented sharply, calling the opinion a threat to American democracy. Justice Thomas dissented, arguing that the Due Process Clause protects only against government restraints on liberty, not entitlements to government benefits. Justice Alito dissented on originalist grounds.
Key Quotes
“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”
“The nature of injustice is that we may not always see it in our own times.”
Impact and Legacy
Obergefell immediately legalized same-sex marriage nationwide and represented a triumph for the LGBTQ rights movement. The decision established that the right to marry is a fundamental right for all couples regardless of sexual orientation. However, the decision's interweaving of due process and equal protection and its departure from the Glucksberg framework for fundamental rights has generated scholarly debate, particularly in light of Dobbs.
Exam Relevance
Obergefell is tested in both due process and equal protection questions. Professors explore the interaction between the two doctrines and ask whether the Court created a new methodology for identifying fundamental rights that departs from Glucksberg. After Dobbs, students should be prepared to assess whether Obergefell's approach to fundamental rights is consistent with the history and tradition methodology.
Study Tips
- Master the four principles Kennedy identified for why the right to marry extends to same-sex couples.
- Understand the interplay between due process and equal protection in the opinion and why Kennedy did not rely on one clause alone.
- Be prepared to compare Obergefell's methodology with the Glucksberg/Dobbs framework for fundamental rights.
- Consider the implications of each dissenting opinion for the future stability of the holding.
Read the Full Case Analysis
View the complete brief for Obergefell v. Hodges including full reasoning, doctrine, and study resources.
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