This morning the Court announced its decision in Obergefell v. Hodges, holding that states must both allow same-sex couples to marry and recognize same-sex marriages from other states. An archived version of the live blog is here. Lyle Denniston covered the decision for this blog, and Amy Howe explained the outcome in Plain English.
Judith E. Schaeffer is the Vice President of the Constitutional Accountability Center
Whether by design or serendipity, today’s historic ruling in Obergefell v. Hodges came on the anniversaries of two other momentous gay rights decisions, Lawrence v. Texas and United States v. Windsor. The author once again was Justice Anthony Kennedy, who has now turned his trio of decisions vindicating the rights of gay men and lesbians — Romer v. Evans being the first — into a resounding quartet. And while Chief Justice John Roberts sternly proclaimed from the bench today and in his written dissent that “the Constitution had nothing to do” with the majority’s decision, in fact it had everything to do with it. Continue reading »
Ryan T. Anderson is the William E. Simon Senior Research Fellow at The Heritage Foundation and the author of the forthcoming book Truth Overruled: The Future of Marriage and Religious Freedom. His amicus brief was cited in Justice Clarence Thomas’s dissenting opinion in Obergefell.
As the four dissenting opinions make abundantly clear, today’s ruling in Obergefell v. Hodges had nothing to do with the Constitution. This ruling is perhaps as clear of an example of judicial activism as any we have seen in recent years – or are likely (hopefully) to see in the future. The majority of the Court simply replaced the people’s opinion about what marriage is with its own. Nothing in the Constitution supplies an answer to the question What Is Marriage? And none of the purported rationales can justify the Court redefining marriage everywhere.
Christopher Green is an Associate Professor at Ole Miss Law.
Near the beginning of the oral argument in Obergefell v. Hodges, Justice Anthony Kennedy caused many observers to think that the Court might allow states to keep traditional marriage definitions after all. These definitions had, Kennedy said, been in place for millennia. “I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it it’s very difficult for the Court to say, oh, well, we—we know better.” Two months later, however, Kennedy surmounted those difficulties. Chief Justice John Roberts puts the point well in his dissent: “If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?” Continue reading »
David R. Upham is an attorney and associate professor of politics at the University of Dallas. He blogs regularly about marriage at whygethitched.com.
About five generations ago, our nation adopted the Fourteenth Amendment. In that same generation, our nation’s Supreme Court declared that “nothing was more wholesome and necessary in the founding of a free, self-governing commonwealth” than “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.” Seemingly all American legal authorities concurred. Continue reading »
John Elwood reviews Monday’s relisted cases.
Summer is officially here. Justices are streaming out of town for their vacations; visions dance in law clerks’ heads of using their modest clerkship bonuses to purchase a few long–deferred necessities; and your friendly neighborhood Relist Watchers are drafting one last full-sized post. Aside from one short mop-up post that we expect to file after the Court’s gavel bangs one last time, this is it. Fortunately we have two ERISA cases to talk about, so we’ll be going out with a bang. Continue reading »
Putting itself back in the forefront of the gay rights revolution, the Supreme Court ruled by the narrowest margin on Friday that same-sex couples across the nation have an equal right to marry. The five-to-four decision was based firmly on the Constitution, and thus could be undone only by a formal amendment to the basic document, or a change of mind by a future Supreme Court. Neither is predictable.
Explicitly refusing to hold off deciding the issue to see how other parts of society may deal with the rising demand for gay acceptance and legitimacy, the Court declared that two clauses in the Fourteenth Amendment mean that a “fundamental right to marry” can no longer be denied because the partners are of the same sex. It did not create a new right, but opened a long-existing one to those partners.
In its Conference of June 25, 2015, the Court is considering petitions seeking review of issues such as whether an appellate court can conduct a post-hoc assessment of trial counsel’s performance based on scientific advances not available at the time of trial, whether an officer who fired his service rifle at a vehicle involved in a high-speed chase acted reasonably under the Fourth Amendment, and whether official actions by a Member of Congress to develop, evaluate, and draft legislation that are undertaken prior to the formal introduction of a bill are legislative acts protected by the Speech or Debate Clause.
This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues. Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.
Two years ago, Justice Anthony Kennedy joined the Court’s four more liberal Justices to strike down a provision of the federal Defense of Marriage Act defining “marriage,” for purposes of over a thousand federal laws and programs, as a union between a man and a woman. The Court’s ruling in United States v. Windsor meant that, going forward, same-sex couples who were married in states where same-sex marriages were legal received the same treatment under federal law as married opposite-sex couples. Today, on the second anniversary of that decision, Justice Kennedy again joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan in holding both that states must allow same-sex couples to marry and that they must recognize same-sex marriages from other states. Let’s talk about the decision in Obergefell v. Hodges in Plain English.