Taking a look back: The highlight reel from Obergefell v. Hodges

Same sex caseBy: Cara L. Gallagher, Weekend Contributor, and Elliot Louthen

This is a beautiful but restless time of year for SCOTUS junkies. The gorgeous, late summer sun sinks faster out of the sky signaling not only the end of the (best) season but also the nearness of the next Supreme Court term. While this reality thrills us, it gives pause and arouses questions. Is it possible to ever have a term as exciting as the last? There’s no way, right? Truth be told, we recall having the same concerns after the close of the October 2011 term, so, yes, there’s a chance.

Rather than stare at the calendar like a watched pot pre-boil, we thought we’d pull out the highlight reel and review some of the big cases from June, starting with Obergefell v. Hodges, aka the same-sex marriage case. In the aftermath of the victory for gay rights, it was easy to overlook the complexities of the decision and focus solely on celebrating or cringing (if you want an inside view of the Courtroom read this post). But it was much more complicated than calling it a simple win or loss.

From Kennedy’s majority opinion to the range of dissents – yes, four dissents – there’s much more to unpack. Thus, below are three arguments that challenge and support the Obergefell decision and highlight the central questions in the case.

• The 14th Amendment was passed for exactly this case: to provide due process and equal protection to all citizens, regardless of the state in which they live. Just as the Court has previously used this amendment to strike down racial and gender discrimination, gay marriage equally merits the same consideration. Moreover, such protection ensures that no matter how long it might have taken for one of the remaining fourteen states to legalize same-sex marriage, gay couples are guaranteed those rights. As summarized by Kennedy, “The very reason that we have a Constitution is that some rights are too important to leave up to the democratic process.”

• From the perspective of public opinion, no matter how you cut it, the Court sided with the majority of Americans. Is it the Court’s responsibility to rule on behalf of the majority? Absolutely not. But statistically speaking, at least the numbers back up this ruling, especially given Millennials are growing older and their increasingly progressive views will continue to shape future political discourse.

• Last but not least, Kennedy’s soaring language impressively closed the majority opinion. The excerpt said it all: “In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

• While the question of marriage equality across the country has now broadly been decided, this ruling poses a series of new challenges towards the idea of religious liberty. Can gay couples adopt or serve as foster parents? Can a religious college that provides special marriage housing accommodations exclude gay couples? We also can’t forget the Court’s Hobby Lobby ruling from 2014, a major victory for proponents of religious freedom and RFRA, giving ample reason to question how these questions may be litigated in the future.

• Marriage as an institution has been steeped in tradition over thousands of years and now – in the stroke of a pen – the Court has turned much of its history on its head. This is unquestionably a decision that emboldens the notion that this Court is guilty of judicial activism. Every single one of the dissenting opinions highlighted exactly how the majority usurped the legislative process from elected officials to an unelected judiciary, a notion that most consider anathema to American democracy.

• Perhaps most provokingly, Roberts’ dissent offers pointed criticism that might even strike the hearts of gay marriage supporters (further underscored by the fact it was his inaugural dissent from the bench). If the overarching goal is to foster a culture of acceptance and tolerance of gay couples among Americans, Roberts posits that going through the legislative process is superior to a radical decision from the judiciary. He writes, “stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

We hope you enjoyed our second look at this case. We’ll rehash a couple more before the OT15 kickoff, October 5th. Happy Labor Day, Turley-ians!

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

20 thoughts on “Taking a look back: The highlight reel from Obergefell v. Hodges”

  1. Nick,
    Try and stay topical for once, would ya?

    I like how I’m the troll yet you keep referring to off topic issues in every thread and making off color remarks just to peek a reaction from people, good, bad or ugly. You animosity doesn’t wear well on you, but you’ve adopted that look for yourself. So, wear it well honey, that’s all that we get to look at.

  2. There’s a good piece in the Daily Beast today about crime. With the alarming increase in crime and inner city violence, the Democrats seem clueless and out of touch. High crime almost always means Republican victories @ the polls. Black Lives Matter is killing the Dems.

  3. Seriously? It is encouraging to hear that possibly freedom will out over bias, in the case of the preposterously unconstitutional affirmative action, per the American founding documents. Freedom will have only waited 226 years.

    It will be eminently interesting to hear the ludicrous Supreme Court (the court that “interprets” English and commingles the definitions of “state” and “federal”) tell us that homosexuals have different and superior rights to everyone else as it proclaims that murder is OK if the victim is young enough, remembering that liberal/collectivists tell us that fetuses aren’t viable, living human beings but their body parts bring millions of dollars on the baby body parts market.

    Another day in the goofy factory.

    The inmates have taken over the asylum.

  4. LC in Texas
    First God created Adam. Then, from Adam’s rib He formed Eve. From them they begot two sons. One murdered his brother. The living don went on to meet his wife. Wait, what? What wife? So far God created Adam, Eve and their two sons. Where did this tart of a wife for Cain come from? His third brother’s little girl? Is he the first Biblical Josh Duggar?

    1. Max-1 – several of my comments have been swallowed, but you are trolling, which is sad.

  5. Thank you davidm2575, your comment was very enlightening. I would like to add that man & woman were to go forth and multiply according to the Bible. Marriage was the protect the children of that union (a record). Of course there was homosexuality as far back as Sodom & Gomorrah and wasn’t it frowned upon also.

  6. Cara Gallagher wrote: “Just as the Court has previously used this amendment to strike down racial and gender discrimination, gay marriage equally merits the same consideration.”

    When the Fourteenth Amendment was voted upon (although there is a question whether it was ever properly ratified), the meaning of the equal protection clause regarded laws framed by the States using the democratic and legislative process. Obviously laws created by the States and the Federal government should apply to everyone equally. However, in the 1960’s and 1970’s, the Court began to twist the meaning of the Fourteenth Amendment in order to give extra powers to the Court not granted by the Constitution. Nothing is more obvious concerning this judicial activism than the recent Obergefell decision. Roe v. Wade comes in at a close second place. In Obergefell, they have forced the States to redefine marriage in a way that demeans gender diversity, diminishes the value of reproduction, and snubs its nose at coitus as unimportant and unrelated to marriage. In effect, they have forced the States to treat marriage not as a cherished institution for the completion of a human being with the man and the woman coming together in complementary unity, but instead they made marriage to be viewed as a simple contract between two people who want to make a commitment to each other. They have effectively destroyed the institution of marriage and placed themselves against those who value it.

    Historically, the 13th Amendment, ratified in 1865, emancipated slaves. New Amendments were being drafted. Two years before the Fourteenth Amendment was allegedly ratified in 1868, petitions went out asking for Constitutional Amendments for protections based not only on race, but also sex. Following is a link to one such petition:


    So the 15th Amendment dealing with race was added in 1870, and the 19th Amendment dealing with gender was added in 1920. Note that the issues of race and sex reflect legislative action through debate and the democratic process. Very little of this happened in regards to gay marriage. In fact, Justice Ginsburg made it clear that she had already made up her mind on the matter before the arguments were made to the court. She publicly commented on the case, which is a violation of the judicial rules of ethics. Petitions for her to recuse herself because of her prejudicial mind went unanswered. Justice Kagan also had officiated a gay marriage. Neither of the vote of these two women should be considered in the case of Obergefell because their minds are prejudiced toward embracing homosexual behavior as good and healthy behavior. So justice was not blind. These Justices had an agenda to accomplish and they did.

    What bothers me about your article, Cara, is that you put race, gender, and gay marriage as being on an equal footing. That is the dogma and mantra of the homosexual activists, but they have not yet proven their case rationally to the American people. The Constitution gives the power to define and regulate marriage to the States. Even the SCOTUS affirmed this in the recent Windsor case. Now, however, in Obergefell, they depart from this obvious rational understanding, and based upon emotional feelings of loving gays, they now force every State to redefine marriage against the will of the people. Their ruling gives the imprimatur of government to the behavior of sodomy and other homosexual behaviors. And while secularists have long held that government should be neutral toward religion, they clearly are not neutral in this decision. The court has waged an all out war against the religions of Judaism, Christianity, and Islam. The federal government through the Supreme Court has now officially become an enemy of numerous religions. The bonds which once held religion and government as copartners in morality, with religion persuading the hearts and government using force to punish evildoers, those bonds have been broken.

    When government fails the people and ignores the vote of the people and acts contrary to the laws passed by their legislatures, then it becomes the duty of the people to overthrow that government and replace it with one that will work. The decision of Obergefell will not go away any more easily than the decision in Roe. The real question is whether a tipping point has been reached where enough of the people will radically change our government to a form of government that will work for everyone. If the people do not act soon, this decision in Obergefell coupled with their decision in Roe will fester civil unrest among the people for decades with millions of people privately hating the government and seeking for ways to avoid complying with it. It was one thing when homosexuality was decriminalized in Lawrence. People figured we can get along with it. The people thought that what they do in private does not affect us. Now, however, more people will be bent toward criminalizing homosexuality once again because its true colors are now seen as a lust for power and position that will never be satiated until their immoral ways are the accepted mores for everyone.

  7. I was quite surprised by your comment that the Court sided with the majority of Americans. Overwhelmingly, states have voted for DOMA and against homosexual marriage. As in many cases, liberals have to rely on the courts what the people are against. I enjoy your columns but you simply got this point wrong.

  8. we have the little litmus test problem now. How to rid ourselves of public officials who aren’t being impeached…..because thay were elected. Seems to me she does exactly what her voters elected her to do….oh when they voted against gay marriage. This is way more than religious rights….this is litmus test. What will tomorrow ppl sign off on ? A one child poliy? Will they have to enforce that? It is not even one step removed….if anyone has a right to marry ….then anyone has a right to support any cause. For what is the ground work? If two homos can marry and have a kid nature was the frame. But two homos can’t have a kidd. Thus a man law is the frame. Man can as easily say no kid. Since there is no grounding.

  9. I am a Libertarian, not a Liberal. I dont like Jeffrey Toobin. I read Scotusblog every day when the Court is in session. I think that some Justices are not treated well. I like Clarence Thomas and feel he gets defamed by the media and Scotus watches. Roberts is scary. Yet he did the right thing in upholding ObamaCare. Scalia can be a wacko. But, he may alter views in his rulings down the road. I predict he will. Too many Justices hail from the NE and from Harvard and Yale (all but one from those two schools). We need another Hugo Black. If Trump wins he might nominate Palin.

  10. I have made it clear I am not a fan of Jeffrey Toobin. But, I do read and watch him. You see, I expose myself to all thoughts, I’m a libertarian. A few days ago Toobin wrote a piece in the New Yorker. He thinks liberals are going to get pimp slapped on cases involving Affirmative Action, Abortion, and Public employee unions.

  11. Inga – Nothing to Too important for the democratic process, except progressive ideas. The next Presidential election is for the Supreme Court and everyone must realize it.

  12. Oh and wanted to underscore your comment regarding the Fourteenth Amendment. Some things ARE “too important for the democratic process”, especially with our dysfunctional Congress.

  13. Thanks for the timely rehash, Cara, considering the Kim Davis case. I too am looking forward to an exciting new SC term and your take on them.

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