What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision
Contents
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I. The Equal Protection Challenge I. The Equal Protection Challenge
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A. Appropriate Level of Scrutiny A. Appropriate Level of Scrutiny
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B. Rational Basis B. Rational Basis
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1. Reasonable and Legitimate 1. Reasonable and Legitimate
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a. The States’ Normative Vision of Marriage a. The States’ Normative Vision of Marriage
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b. The States’ Empirical Judgments and Choices of Policy Purposes b. The States’ Empirical Judgments and Choices of Policy Purposes
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2. Caste? 2. Caste?
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3. Actual Motives? 3. Actual Motives?
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II. Due Process Clause II. Due Process Clause
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Notes Notes
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Girgis and George, JJ., dissenting.
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Published:24 November 2020
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We can dispose of the case in two sentences: The States’ marriage laws closely reflect normative and policy judgments about marriage that are reasonable in themselves and cannot have had their origins in bigotry. A ruling for petitioners requires replacing those judgments with alternatives of which our Constitution and legal tradition and two centuries of cases are all wholly innocent.
These points alone block every path to the majority’s destination. The laws it deems unconstitutional reflect no animus. They create no caste. They deny nothing so rooted in our legal traditions as to support even a half-baked claim under our less-than-half-baked substantive due process law. They flout no other constitutional provision or principle, whether real or even merely invented by our most enterprising predecessors on this Court.
All that remain are policy judgments—those of our colleagues and those of millions of voters across the nation. But in the majority’s calculus, five lawless votes from this bench are worth more than forty million lawful ones at the ballot box.1 From that judicial self-aggrandizement, so heedless of our constitutional limits, we dissent.
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