The Supreme Court and the Future of Marriage

20 Pages Posted: 21 Sep 2012

See all articles by Stephen L. Mikochik

Stephen L. Mikochik

Ave Maria School of Law; Temple University James E. Beasley School of Law

Date Written: July 1, 2007


In Lawrence v. Texas,' the Supreme Court,struck down a Texas law criminalizing homosexual sodomy. Justice Scalia dissented and protested that the majority had thereby undercut traditional limits on marriage, claiming that "[t]oday's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." The author discusses whether Justice Scalia's charge is worth taking seriously or rather should be dismissed as mere hyperbole. He concludes that Justice Scalia's concerns are quite real. The grounds on which the Lawrence majority attacked prior precedent effectively cleared the way for dismantling sexual distinctions in marriage. Specifically, the lynchpin of Justice Kennedy's approach for the Lawrence majority was to discredit the historical conclusions in Bowers v. Hardwick, the Court's 1986 decision upholding Georgia's sodomy ban as applied to homosexual conduct.

Keywords: marriage, homosexuality, Lawrence v. Texas, sodomy

Suggested Citation

Mikochik, Stephen L. and Mikochik, Stephen L., The Supreme Court and the Future of Marriage (July 1, 2007). University of Detroit Mercy Law Review, Vol. 84, No. 3, 2007, Available at SSRN:

Stephen L. Mikochik (Contact Author)

Temple University James E. Beasley School of Law ( email )

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Ave Maria School of Law ( email )

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