Beyond the Marriage Bells: A Critique of Originalism and the Obergefell Dissents

"To deny people their human rights is to challenge their very humanity." – Nelson Mandela. The dissents in Obergefell v. Hodges do precisely this, cloaking the denial of fundamental rights in the language of judicial restraint, democracy, and originalism. Rather than recognizing same-sex couples as full and equal participants in one of the most deeply personal and legally significant institutions — marriage — the dissenting justices seek to relegate them to a lesser status, dismissing their claims to dignity as a matter best left to political debate. But constitutional rights are not subject to popular vote, and the humanity of any group does not depend on the shifting tides of public opinion. By refusing to acknowledge the right to marry as one rooted in liberty and equality, the dissents not only deny same-sex couples the legal protections afforded to their heterosexual counterparts but also diminish the constitutional promise that all persons are entitled to equal dignity under the law.

Obergefell v. Hodges was brought by fourteen same-sex couples suing states who had bans on same-sex marriage or refused to recognize same-sex marriages that were licensed in other states. The landmark case sought to answer two questions: (1) does the Fourteenth Amendment require a state to license a marriage between two people of the same sex, and (2) does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state? In a 5-4 decision, the Court held that the Fourteenth Amendment requires both marriage licensing and recognition for same-sex couples. [1] The majority’s decision, authored by Justice Anthony Kennedy, was rooted in the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In the words of Justice Kennedy, “[the petitioners] ask for equal dignity in the eyes of the law. The Constitution grants them that right.” [2]

The conservative members of the Court saw it differently. Justice Thomas viewed the majority’s holding as “at odds not only with the Constitution, but with the principles upon which our Nation was built.” [3] The dissent was led by Chief Justice Roberts and joined by Justices Scalia, Alito, and Thomas, all of whom also wrote separate impassioned, dissenting opinions. The dissents attempted to disguise their arguments under the principles of democratic debate and judicial overreach. Yet, one thing remained clear: they continuously misapplied originalism to distort the Constitution’s protections of liberty and equality. By inconsistently defining fundamental rights, they manipulate the “deeply rooted” test to exclude same-sex marriage, in a way which was inconsistent with their selective expansion of other rights. Their rejection of substantive due process and equal protection ignores the evolving recognition of LGBTQ rights and the Court’s role in safeguarding minorities from majoritarian rule. Ultimately, their reliance on history and judicial restraint is not principled but strategic, undermining the Constitution’s commitment to dignity and justice.

ORIGINALISM IN SUBSTANTIVE DUE PROCESS

In order to understand the dissents’ mischaracterization of liberty and due process, it is first necessary to understand the type of constitutional-interpretation theory they are working in: originalism. The theory of originalism is that constitutional or legal text should be understood in light of the original public meaning of the law. To gain information on the original public meaning, interpreters turn to dictionaries, grammar books, and other legal documents, or they might even consider the state of public debate and background events that spurred the law or constitutional amendment in question. Because originalism turns on original public meaning and not the subjective understanding of today, originalism is meant to combat the “living constitutionalism” theory, which asserts that the Constitution is a living document that can evolve and change with society. [4] Originalism, put simply, is synonymous with objectivity. At least that’s what originalists claim. But as will become clear, originalism is itself a practice of subjectivity, of determining which history actually matters; or as prominent legal scholar Madiba Dennie writes, “when originalists want to do a bad thing and the history isn’t on their side, they choose their favorite tidbits of the past and rewrite history until it actually is.” [5]

Originalist substantive due process jurisprudence is rooted in the 1997 Supreme Court case Washington v. Glucksberg. In determining whether a competent, terminally ill patient’s desire to utilize physician-assisted suicide could be banned by a state, the Court weighed whether the asserted liberty to choose death over life was a right fundamentally protected by the Due Process Clause of the Fourteenth Amendment. In a unanimous decision, the Court resoundingly said it was not. The majority opinion, penned by conservative Chief Justice Rehnquist, stressed that only rights “deeply rooted in our Nation’s history and tradition” were considered fundamental under the Due Process Clause. Glucksberg further held that Washington’s ban was rationally related to a legitimate state interest and therefore would not be struck down. [6] Despite its claim to objectivity, Glucksberg’s “history and tradition” test is necessarily subjective. It offers no clear standard for determining which historical periods are sufficiently “deeply rooted” to define fundamental rights. When different eras reflect conflicting beliefs, which prevails? When competing traditions exist within the same period, whose voices are privileged? By failing to resolve these questions, the test becomes less a neutral principle and more a tool for selectively legitimizing certain rights while denying others.

In his famed Poe v. Ullman (1961) dissent, Justice Harlan II argued against the very test that would be established thirty-six years later in Glucksberg. [7] In fact, he argued that due process could not “be reduced to any formula; its content cannot be determined by reference to any code.” His logic was simple: “were due process merely a procedural safeguard, it would fail to reach those situations where the deprivation of life, liberty, or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three.” [8] Harlan’s critique also exposes the fundamental flaw in the Glucksberg “history and tradition” test: it treats tradition as an unassailable boundary rather than a foundation upon which constitutional principles evolve. As Harlan noted, “a decision of this Court which radically departs from tradition could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.” [9] By rigidly adhering to historical practice, Glucksberg mistakes endurance for legitimacy, ignoring that many now-repudiated injustices were once deeply rooted in tradition. Constitutional interpretation demands more than passive deference to the past; it requires a principled engagement with history to ensure that enduring Constitutional values, rather than outdated prejudices, shape the law’s trajectory.

Both the majority and minority opinions in Obergefell understand the right to marriage as deeply rooted in the history and tradition of the Nation and thus considered fundamental under the Due Process Clause. [10] But where the real contention lies is what is the right in question in Obergefell. Unsurprisingly, the majority decision takes an expansive, inclusive approach to defining the asserted right, while the dissents argue for a narrowly defined right. The majority concedes that all fundamental right to marriage cases prior to Obergefell were understood to be between a man and woman; yet, in taking a broader approach, the majority asserts that, “in defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond.” [11] Indeed, the majority asserts that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Justice Kennedy further writes, “the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” [12] Rather than confining marriage to its historically understood definition as a union between a man and a woman, the majority instead adopts an expansive approach that examines the “essence” and “nature” of marriage itself. In doing so, the majority conveys that same-sex marriage is fundamentally included in the fundamental right to marriage, as it embodies the same core liberties and personal autonomy long recognized in the Court’s jurisprudence. This analysis reveals that marriage is not merely a static legal institution but a dynamic source of fundamental freedoms, each deeply embedded in the nation’s constitutional tradition.

The dissents want no part in applying the right to marriage to Obergefell. Instead, Chief Justice Roberts claims that “the right the petitioners actually seek here” is the “right to make a State change its definition of marriage.” [13] This is because the Chief Justice argues that “the right to marry cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process.” [14] But what defines the traditional understanding of marriage? Chief Justice Roberts and Justice Alito make it clear: procreation. The only traditional rationale for marriage, according to Chief Justice Roberts, is “for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.” [15] Justice Alito echoes this statement writing, “states formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.” [16] Accordingly, Chief Justice Roberts believes that expanding the right to marriage “suddenly and dramatically is likely to require tearing it up from its roots.” [17] Likewise, Justice Alito recognizes that “more than 40% of all children in this country are born to unmarried women,” which is, “undoubtedly [] both a cause and a result of changes in our society’s understanding of marriage.” [18] In other words, the perceived expansion of marriage to include same-sex couples degrades the traditional understanding of marriage. Justice Alito even goes as far as to say that allowing same-sex marriages is somehow causing (or will cause) less straight people to marry — though he provides no data or logic to support his assertion. Thus, to Chief Justice Roberts and Justice Alito, this is sufficient to recognize that same-sex marriage does not fall under the Court’s fundamental right to marry.

But even if one accepts the dissents’ linkage between procreation and marriage — a connection that Justice Alito himself concedes “has frayed” — their reasoning collapses under the weight of modern medical and technological advancements, particularly assisted reproductive technology. In vitro fertilization (IVF) allows same-sex couples to conceive children without heterosexual intercourse, fundamentally undermining the claim that only male-female unions can naturally lead to procreation. [19] A woman in a same-sex marriage can undergo IVF using donor sperm, just as an unmarried woman in a same-sex relationship could, producing the very outcome that Chief Justice Roberts and Justice Alito claim marriage is designed to regulate. By their own logic, if the state has a compelling interest in ensuring that procreative relationships occur within the bounds of a stable, committed union, then it should recognize and encourage marriage for same-sex couples who, through IVF or other assisted reproduction technology, can engage in precisely the kind of procreation their framework seeks to protect. Therefore, the dissents’ assertion that the fundamental right to marriage only applies to opposite-sex couples (because of a procreation rationale) should hold no weight.

But let’s assume for argument’s sake that Chief Justice Roberts correctly identified the right asserted by the petitioners as the right to make a State change its definition of marriage. This decision would be flawed in two major ways. First, it is expressly inconsistent with how the Court has treated other fundamental right cases. As Justice Kennedy writes, “Loving did not ask about a right to interracial marriage; Turner did not ask about a right of inmates to marry; and Zablocki did not ask about a right of fathers with unpaid child-support duties to marry. Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.” [20] The dissents’ claim that the right in Obergefell is an entirely new and different right from other marriage cases simply because the fundamental right to marriage only applies to the traditional understanding of marriage — namely, a union between a man and a woman for procreation purposes. But as has been shown above this argument is inconsistent with new advancements in reproductive technology.

The way a right is framed is not just a matter of semantics; it is the crux of the legal analysis. When originalists search for a right “deeply rooted” in the Nation’s history, the breadth or narrowness of their inquiry dictates the outcome. And perhaps that is precisely the point. As legal scholar Madiba Dennie observes, “if you break down any right into sufficiently small and specific terms, looking for proof of its historical existence can be like looking for a needle in a haystack.” [21] Originalism operates not as an objective method of interpretation but as a rhetorical tool, one that expands or contracts rights depending on the desired result. When originalists want to recognize interracial, inmate, or child-support marriages as part of the fundamental right to marry, they define the right broadly. But when they seek to exclude same-sex couples, they suddenly demand an impossibly specific historical precedent, ensuring that such a right will never be found.

In no two cases was this more prevalent than in the differing outcomes of Bowers v. Hardwick (1986) and Lawrence v. Texas (2003). In Bowers, the Court was confronted with a Georgia statute that criminalized sodomy, and was tasked with the question of “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” [22] In Lawrence, the Court faced a similar Texas statute that criminalized sexual intimacy by same-sex couples, and was tasked with the question of “whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.” [23] Bowers upheld the constitutionality of Georgia’s statute, finding that “the right of homosexuals to engage in sodomy” was not “deeply rooted in our Nation’s history and tradition.” [24] Lawrence struck down the Texas statute holding that the right to consensual sexual intimacy and privacy was a deeply rooted right and thus violated the Due Process Clause; in doing so, Lawrence overruled Bowers. [25] It comes as no surprise that Bowers’s narrowly framed right was not found to be protected by the Fourteenth Amendment. No one disputes that a fundamental right to “homosexual sodomy” is not deeply ingrained in our Nation’s history — but how could it be? Until 1973, homosexuality was classified as a mental disorder in the United States. As Justice Kennedy explains, “only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.” [26] To this very point, legal scholar Madiba Dennie observes, “a major problem present in…the current Court’s focus on the historical depth of a right’s roots is that it pays no attention to whether the soil it’s rooted in is rotten.” [27] Despite originalism’s claimed commitment to historical contextual interpretation, it never interrogates the biases and misconceptions that shaped the past. The inability to find a fundamental right cannot be separated from the systemic discrimination that erased it from history in the first place. Instead of entrenching the prejudices of the past, Lawrence took a different approach, one that recognized that constitutional principles must be understood in light of evolving knowledge and the fundamental dignity of all people.

In yet another attempt to dismiss the petitioners’ asserted right to marriage, the dissents in Obergefell focused heavily on the distinction between positive and negative rights. Justice Thomas made this clear when he stated, “in the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular entitlement.” [28] This notion found a sympathetic echo in Chief Justice Roberts’s opinion, where he argued, “[the petitioners] seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.” [29] However, what the dissents fail to grasp is that marriage is, by its nature, both a positive and a negative right. While marriage is undoubtedly a positive right, requiring the state to recognize it legally and provide governmental benefits such as taxation, inheritance, property rights, and spousal privileges, it is also inherently a negative right — one that ensures the government cannot interfere with the intimate autonomy that marriage protects. As Justice Kennedy emphasized, marriage is one of the most intimate expressions of self-autonomy and privacy, an area where the state must remain absent. [30] In Griswold v. Connecticut (1965), Justice Douglas famously wrote, “marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” [31] By recognizing marriages, states affirm both a positive right (granting legal recognition and benefits) and a negative right (refraining from interference in the autonomy of marriage). As Justice Kennedy further observed, “outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty,” suggesting that positive governmental action is necessary to ensure the full dignity and liberty of same-sex couples. [32]

Justice Thomas took particular offense to the majority’s assertion of the right to dignity for same-sex couples, writing, “the flaw in [the majority’s] reasoning of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.” [33] Justice Thomas further expands on this philosophical belief that dignity comes from within humans and cannot be conferred by a government: “slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them…the government cannot bestow dignity, and it cannot take it away.” [34] Justice Thomas’ insistence that the government "cannot bestow dignity" misunderstands that substantive due process exists precisely to prevent the state from stripping individuals of the dignity inherent in their autonomy. His assertion that enslaved individuals and Japanese Americans interned during World War II “did not lose their dignity” because of government action is both legally incoherent and morally repugnant. While human dignity may be an intrinsic quality, it is absurd to suggest that systematic dehumanization (enslavement, racial terror, and mass internment) did not fundamentally assault that dignity in tangible and catastrophic ways. The law, at its worst, has sanctioned atrocities that have forcibly reduced people to subhuman status in both legal recognition and lived reality. To claim that government oppression does not take away dignity is to erase the brutal realities of historical injustice. More disturbingly, Justice Thomas’s argument effectively absolves the law of its role in perpetuating and legitimizing these abuses. But even if we accept Justice Thomas’s premise that substantive due process does not affirm dignity, the Equal Protection Clause undeniably forbids the state from enacting laws that treat some groups as less worthy of legal recognition — yet his dissent fails to grapple with how denying same-sex couples the rights and protections of marriage entrenches precisely the kind of second-class status the Fourteenth Amendment was designed to prevent.

EQUAL PROTECTION

The Equal Protection Clause of the Fourteenth Amendment explicitly states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” [35] At first glance, this principle appears directly violated by states that refuse to issue marriage licenses to same-sex couples. Why, then, did the majority in Obergefell not center its argument on the Equal Protection Clause, as the Court did in Loving? Chief Justice Roberts, in his dissent, criticizes this omission, stating, “the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position.” [36] This raises a crucial question: did the majority err in not fully articulating the Equal Protection Clause’s independent force? Furthermore, did the Court miss an opportunity to establish a firm precedent on suspect classification rather than intertwining the Equal Protection Clause with substantive due process?

Certainly, the majority made use of the Equal Protection Clause, but only insofar as it works synergistically with the Due Process Clause. Justice Kennedy writes, “each concept—liberty and equal protection—leads to a stronger understanding of the other” because “in any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” [37] But in doing so, the Court inextricably linked the Equal Protection argument to substantive due process. That is to say, if the Court later decides that substantive due process no longer protects same-sex marriage, then the Equal Protection argument is fundamentally moot. The now-conservative Court has turned this hypothetical into a substantive fear. In Dobbs v. Jackson Women’s Health Organization (2022), the Court overruled Roe v. Wade, which protected the right to abortion, citing that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” [38] Roe, like Obergefell, made no independent argument rooted in the Equal Protection Clause, which meant that for the Court to overturn Roe, it merely needed to conclude that abortion was not protected under the Due Process Clause. Such are the dissents’ arguments in Obergefell. Simply put, by explicitly tethering the Equal Protection Clause to the Due Process Clause, the Obergefell majority left its ruling vulnerable in a judicial landscape increasingly hostile to substantive due process rights. Rather than advancing an independent argument for heightened scrutiny, the majority unwittingly laid a path for an originalist Court to unravel marriage equality with the same logic it used to dismantle abortion rights.

The Court has long recognized that the Equal Protection Clause does not serve as a universal remedy for all instances of differential treatment. In certain circumstances, it is reasonable for a legislature to enact such laws. In reviewing Equal Protection cases, the Court “will uphold the legislative classification so long as it bears a rational relation to some legitimate end” as long as the law “neither burdens a fundamental right nor targets a suspect class.” [39] The Court’s framework is clear: if a law (1) targets a suspect class, (2) burdens a fundamental right, or (3) fails rational-basis review, then the law cannot stand. However, this framework presents a critical weakness: rational-basis review is an exceedingly deferential standard, under which almost any law can survive so long as the government can articulate a conceivable legitimate interest. In practice, courts rarely strike down laws under rational-basis review, as nearly all legislative classifications can be justified by some plausible rationale, no matter how tenuous. This deference is precisely why the classification of a right as fundamental is so consequential in Equal Protection analysis — once a right is deemed fundamental, restrictions on it trigger heightened scrutiny, shifting the burden to the government to justify its exclusion with a “substantially related” interest. Thus, the way in which the right to marriage is defined is not a mere exercise in semantics but a decisive factor in determining whether same-sex couples are entitled to full constitutional protection under the Equal Protection Clause. Perhaps this is why the dissents refused to allow the fundamental right to extend to same-sex marriage. Instead, by defining the Obergefell right as a “right to make a State change its definition of marriage,” which is certainly not fundamental, the dissent can dismiss any arguments that same-sex marriage bans burden a fundamental right, and that “distinguishing between opposite-sex and same-sex couples is rationally related to the States’ legitimate state interest in preserving the traditional institution of marriage.” [40]

Justice Kennedy and the majority had the opportunity to advance an Equal Protection Clause argument that is unrelated to Substantive Due Process: suspect or protected classification. The above framework indicates that if a law targets a suspect class, that law cannot stand under the Equal Protection Clause. Suspect classification refers to a class of individuals who have been historically subject to discrimination, and the Court has been reluctant to utilize suspect classifications. The four generally agreed-upon suspect classifications include race, religion, national origin, and alienage. In deciding whether a group should receive suspect classification the Courts consider (1) whether the person has an inherent trait, (2) whether the person has a trait that is highly visible, (3) whether the person is part of a class which has been historically disadvantaged, and (4) whether the person is part of a group that has historically lacked effective representation in the political process. [41] Despite the majority not doing so, there is certainly a compelling argument to be made that homosexual individuals satisfy all four prongs of suspect classification. As to prong one, scientific research “makes it clear that there is a significant biological contribution to the development of an individual’s sexual identity and sexual orientation.” [42] Notably, the majority opinion in Obergefell notes, and is left unchallenged by the dissent, that sexual orientation is “immutable.” [43] As to prong two, while an individual’s sexual orientation may not be “highly visible,” as it applies to same-sex marriage, the trait is manifestly visible. As to prong three, there is simply no dispute that homosexual individuals have been historically disadvantaged. As Justice Kennedy makes clear, “until the mid-20th century, same-sex intimacy had long been condemned as immoral by the state” and “homosexuality was classified as a mental disorder, a position adhered to until 1973.” [44] The tangible disadvantages include, but certainly are not limited to, prohibition of government employment and military service, exclusion under immigration laws, targeting by law enforcement, and a burden on their right to associate. [45] Prong three thus seems easily satisfied. Prong four is perhaps the most contested, as the definition of “effective representation in the political process” remains unclear. However, history leaves little doubt that, for much of our Nation’s past, LGBTQ individuals had no political representation — let alone effective representation. It was not until 1974 that Kathy Kozachenko became the first openly gay person elected to public office in the United States, serving on the Ann Arbor City Council. More than a decade later, in 1987, Representative Barney Frank of Massachusetts became the first openly LGBTQ member of Congress. And as recently as 2021, Pete Buttigieg became the first openly LGBTQ person confirmed to a Cabinet post. [46] Yet, LGBTQ individuals were not merely absent from elected office; they were outright barred from federal employment. President Dwight Eisenhower’s Executive Order 10450 explicitly prohibited homosexuals from working in the federal government, citing unfounded national security concerns. [47] Thus, if LGBTQ individuals were denied both elected representation and even the opportunity to serve in government, it is evident that they lacked any meaningful political voice. The overwhelming evidence suggests that gay individuals meet the criteria necessary for suspect classification, making same-sex marriage bans presumptively invalid and shifting the burden to the State to provide a compelling justification. By failing to recognize this classification, the Obergefell majority missed a critical opportunity to ground its decision in a more enduring Equal Protection framework, leaving its ruling vulnerable to future judicial reinterpretation.

But even if the Court was unwilling to go as far as to recognize a new suspect class, the majority should have at least addressed the facial sex-based line drawing. In determining if a law drew a classification based on sex, the Court generally asks whether the outcome differs if the sex of the plaintiff was changed. Here it is very clear: if one partner was a different sex, the couple would be permitted to marry. That is a facially sex-based line and entitled to heightened scrutiny. Indeed in Baehr v. Lewin (1993), the Hawaii Supreme Court held Hawaii’s law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii constitution. [48] By sidestepping both suspect classification and sex-based discrimination, the Obergefell majority forfeited the opportunity to anchor its ruling in a well-established Equal Protection framework that mandates heightened scrutiny. In doing so, it left marriage equality vulnerable to future judicial rollback, contingent not on the enduring principles of equal protection but on the shifting sands of substantive due process.

THE DEMOCRATIC PROCESS

Had the dissents prevailed, the issue of same-sex marriage would be returned to each state for separate deliberation, reflecting dissents’ overreliance on the democratic process and judicial restraint. Justice Thomas writes, “the majority apparently disregards the political process as a protection for liberty.” [49] However, the political process has not always protected liberty for minority groups, especially when it comes to fundamental rights. Chief Justice Roberts echoed these sentiments, writing, “but those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.” [50] But when it comes to protecting the rights of historically marginalized groups, the democratic process has often been insufficient. Did the democratic process desegregate schools? No, Brown v. Board (1954) did. Did the democratic process protect interracial marriages? No, Loving v. Virginia (1967) did. Did the democratic process end racial gerrymandering? No, Shaw v. Reno (1993) did. Did the democratic process allow women to obtain contraception? No, Griswold v. Connecticut (1965) did. Time and again, the promise of democracy has faltered when tasked with securing the rights of those on the margins. It was not legislative action or popular will that ensured equal protection, but rather judicial intervention that recognized and affirmed the fundamental dignity of these individuals. The same holds true for same-sex couples seeking the right to marry. Waiting on the democratic process to correct these injustices is not just unrealistic, but a betrayal of the very principles of liberty and equality that the Constitution demands.

The democratic process is undoubtedly a central tenet of our nation. But as Justice Harlan wrote in his Poe dissent, “there are limits to the extent to which a legislatively represented majority may conduct . . . experiments at the expense of the dignity and personality of the individual.” [51] The protection of fundamental rights, particularly those that concern personal liberty and equality, cannot be left solely to the will of the majority when such rights are under threat. History has shown that when the democratic process has failed to safeguard these rights, it is the Court’s duty to step in.

CONCLUSION

In 2021, there were about 1.2 million same-sex couple households in the United States, and roughly 710,000 of those households were married. [52] The Obergefell decision was instrumental in providing legal recognition and protection to these couples, securing their right to marry and ensuring equal treatment under the law. Today, an increasing number of political and conservative activist groups are calling on the Supreme Court to revisit (and overturn) its decision in Obergefell. [53] These efforts reflect broader debates over the evolving role of the judiciary in safeguarding civil rights and liberties. However, as history has shown, the protection of fundamental rights cannot be left to the changing tides of political pressure. It is up to the current Justices on the Supreme Court to ensure that these rights are not undermined by transient political winds, but instead upheld as enduring principles of liberty and equality for all citizens.

In direct opposition to originalism, Justice Breyer’s workable Constitution theory posits that the Constitution is a practical, evolving document meant to uphold enduring principles in a changing society. [54] Rather than rigidly adhering to historical interpretations, judges should apply constitutional values in a way that remains functional and relevant over time. He emphasizes that the Framers intended for constitutional principles to be adaptable, ensuring they effectively guide future generations. This view aligns with Thomas Jefferson’s belief that past generations should not permanently dictate the laws of the present, as “the earth belongs always to the living generation.” [55] In practice, this approach relies on methodologies such as precedent, pragmatic reasoning, and an assessment of real-world consequences to ensure that constitutional principles remain effective in protecting rights and promoting justice in contemporary society.

It takes profound courage to see the world not as it was, but as it should be. Indeed, it is the safe and comfortable option for justices to defer to history. To be sure, history offers valuable insights and lessons, illuminating the principles that have guided our constitutional framework. But as has been shown, a deference to the past necessarily requires an honest reckoning with the discrimination and misconceptions that shaped it. As Justice Kennedy writes, “the nature of injustice is that we may not always see it in our own times.” The dissents in Obergefell fail to recognize that. Instead, by applying the “history and tradition” test to exclude same-sex couples from the fundamental right to marriage, the dissents lose sight of the two principles upon which our Nation was founded: liberty and equality. Without a relentless commitment to these ideals, we risk losing the very essence of what it means to live in a free and just society. If the Court’s now-conservative-supermajority were to overturn Obergefell or dismantle substantive due process, liberty and equality would no longer serve as guiding principles of our constitutional order, but as hollow words, untethered from the realities of those they are meant to protect. That is not a nation anyone should want to live in.

Bibliography

[1] Obergefell v. Hodges, 576 U.S. 644 (2015)

[2] Id.

[3] Obergefell v. Hodges, 576 U.S. 644 (2015) (Thomas, J., dissent)

[4] “Originalism,” Legal Information Institute, https://www.law.cornell.edu/wex/originalism.

[5] Dennie, Madiba K. The Originalism Trap: How Extremists Stole the Constitution and how We the People Can Take it Back. Random House, 2024.

[6] Washington v. Glucksberg, 521 U.S. 702 (1997)

[7] Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J., dissent)

[8] Id.

[9] Id.

[10] Obergefell v. Hodges, 576 U.S. 644 (2015)

[11] Id.

[12] Id.

[13] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissent)

[14] Id.

[15] Id.

[16] Obergefell v. Hodges, 576 U.S. 644 (2015) (Alito, J., dissent)

[17] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissent)

[18] Obergefell v. Hodges, 576 U.S. 644 (2015) (Alito, J., dissent)

[19] Holcombe, Madeline. “About 2% of Babies Born in the US Are from IVF. Here’s What You Need to Know about It.” CNN, February 21, 2024. https://www.cnn.com/2024/02/21/health/ivf-egg-freezing-explainer-wellness/index.html.

[20] Obergefell v. Hodges, 576 U.S. 644 (2015)

[21] Dennie, Madiba K. The Originalism Trap: How Extremists Stole the Constitution and how We the People Can Take it Back. Random House, 2024.

[22] Bowers v. Hardwick, 478 U.S. 186 (1986)

[23] Lawrence v. Texas, 539 U.S. 558

[24] Bowers v. Hardwick, 478 U.S. 186 (1986)

[25] Lawrence v. Texas, 539 U.S. 558

[26] Obergefell v. Hodges, 576 U.S. 644 (2015)

[27] Dennie, Madiba K. The Originalism Trap: How Extremists Stole the Constitution and how We the People Can Take it Back. Random House, 2024.

[28] Obergefell v. Hodges, 576 U.S. 644 (2015) (Thomas, J., dissent)

[29] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissent)

[30] Obergefell v. Hodges, 576 U.S. 644 (2015)

[31] Griswold v. Connecticut, 381 U.S. 479 (1965)

[32] Obergefell v. Hodges, 576 U.S. 644 (2015)

[33] Obergefell v. Hodges, 576 U.S. 644 (2015) (Thomas, J., dissent)

[34] Id.

[35] U.S. Const. amend. XIV, § 1

[36] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissent)

[37] Obergefell v. Hodges, 576 U.S. 644 (2015)

[38] Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022)

[39] Romer v. Evans, 517 U.S. 620 (1996)

[40] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissent)

[41] “Suspect Classification,” LII / Legal Information Institute, https://www.law.cornell.edu/wex/suspect_classification.

[42] C. E. Roselli, “Neurobiology of Gender Identity and Sexual Orientation,” Journal of Neuroendocrinology 30, no. 7 (July 2018): e12562, https://doi.org/10.1111/jne.12562.

[43] Obergefell v. Hodges, 576 U.S. 644 (2015)

[44] Id.

[45] Id.

[46] Brooke Sopelsa, Leal Joe Kottke, Matt Lavietes, Jo Yurcaba, Isabela Espadas Barros, “Pride and Politics: 30 LGBTQ Leaders Who Broke Barriers in Government and Beyond,” https://www.nbcnews.com/specials/pride-lgbtq-leaders-politics-government/.

[47] Executive Order 10450: Security Requirements for Government Employment

[48] Baehr v. Lewin, 74 Haw. 530 (1993)

[49] Obergefell v. Hodges, 576 U.S. 644 (2015) (Thomas, J., dissent)

[50] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissent)

[51] Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J., dissent)

[52] US Census Bureau, “Key Demographic and Economic Characteristics of Same-Sex and Opposite-Sex Couples Differed,” https://www.census.gov/library/stories/2022/11/same-sex-couple-households-exceeded-one-million.html.

[53] A.B.C. News, “More Republican Lawmakers Call on SCOTUS to Reconsider Gay Marriage Ruling,” https://abcnews.go.com/Politics/republican-lawmakers-increase-calls-gay-marriage-scotus-ruling/story?id=119395181.

[54] Breyer, Stephen. Reading the Constitution: why I chose pragmatism, not textualism. Simon and Schuster, 2024.

[55] Id. at 123.