Obergefell v. Hodges: Framing Fundamental Rights
14 Pages Posted: 30 Jun 2015 Last revised: 7 Nov 2015
Date Written: June 29, 2015
While Justice Kennedy posed his analysis in Obergefell first as a due process question, followed by an equal protection echo, his fundamental rights inquiry is at heart about equal protection values and cannot be isolated from them. This is because he resolved the question of how to properly frame the right at issue by analyzing whether same-sex couples were similarly situated to opposite-sex couples with respect to those attributes that make the marriage right fundamental in nature. In so doing, Justice Kennedy provided important guidance to lower courts and advocates on how to argue equal protection claims in the absence of suspect classification status.
Keywords: Obergefell v. Hodges, same-sex marriage, equal protection, fundamental rights
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