Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment

22 Pages Posted: 30 Jun 2015  

Michael J. Perry

Emory University School of Law

Date Written: June 27, 2015

Abstract

In OBERGEFELL v. HODGES, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in OBERGEFELL?

This brief paper is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in OBERGEFELL. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.

Suggested Citation

Perry, Michael J., Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment (June 27, 2015). Emory Legal Studies Research Paper No. 15-356. Available at SSRN: https://ssrn.com/abstract=2624022

Michael John Perry (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-2086 (Phone)

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