“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Justice Anthony Kennedy
Obergefel v. Hodges

A few days ago, in a five-four decision, the United States Supreme Court in Obergefel v. Hodges ruled in favor of same-sex marriage.  The decision has promoted much commentary, as have the dissents.  Professor Ruben J. Garcia states that the decision “. . . will be remembered for recognizing the stigma that gays and lesbians encountered because of laws that prevented them from marrying their partners . . .[1]

Adam Liptak, the Supreme Court correspondent for the New York Times, noted that it is hard to identify the precise legal holding in the case.  Not surprisingly, Justice Scalia in dissent was critical of Justice Kennedy’s opinion in pointing out that the decision lacked rigorous legal analysis.[2]  He wrote that it sounded like a fortune cookie, not a legal decision.

Paul Smith, writing in a recent SCOTUSblog article, says the following, “You can like or dislike [Justice Kennedy’s] writing style, but the majority opinion simply applied the law as it stands.”[3]

Smith identifies two basic disagreements between the majority and the dissenters in the Obergefel decision.  First, whether it is right for the court in Lawrence to strike moral disapproval from the list of potential state justifications for discrimination against gay and lesbian people and couples.  And, second, whether the constitutional protections for liberty are entirely static or whether, instead, they evolve as human understanding and social conditions evolve.  Justice Kennedy strongly reaffirmed the second position.  According to Smith, this could be seen as a flat rejection of “originalism”.  This, perhaps, is the real reason why the dissenters were so critical.[4]  “They see the alternative of an evolving Constitution as anathema because it allows recognition of new forms of liberty like the right of a gay couple to live together and be treated equally.”[5]

by Patrick Gaffney

by Patrick Gaffney

[1] Hamilton-Griffin.com: Hamilton and Griffin on Rights

[2] Adam Liptak, NPR Radio Show Fresh Air 7/2/2015

[3] Paul Smith, Symposium: A fair and proper application of the Fourteenth Amendment, SCOTUSblog (Jun. 27, 2015, 10:17 AM), http://www.scotusblog.com/2015/06/symposium-a-fair-and-proper-application-of-the-fourteenth-amendment/

[4] Ibid.

[5] Ibid.