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Unpublished Paper
Obergefell v. Hodges: How the Supreme Court Should Have Ruled
ExpressO (2015)
  • Adam Lamparello
Abstract

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and (3) reflect animus toward same-sex couples. This approach roots the right to same-sex marriage more firmly in the Constitution’s text and reflects judicial restraint.


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Keywords
  • obergefell v. hodges,
  • same-sex marriage,
  • justice kennedy,
  • justice scalia,
  • equal protection,
  • due process
Publication Date
August 12, 2015
Citation Information
Adam Lamparello. "Obergefell v. Hodges: How the Supreme Court Should Have Ruled" ExpressO (2015)
Available at: http://works.bepress.com/adam_lamparello/45/