The Lawfulness of the Same-Sex Marriage Decisions: Charles Black on Obergefell

Abstract

In 1960, Charles Black wrote a justly famous defense of Brown v Board of Education that he described as “awkwardly simple.” His eloquent, influential work offers an equally compelling defense of the Court’s recent decision in Obergefell v. Hodges. This Essay takes the Black argument as a template, and imposes onto it the same-sex marriage decisions. It also imagines how Black might respond to Chief Justice Robert’s dissent in Obergefell.

Keywords: Charles Black, Obergefell, equal protection, due process, liberty, constitutional history, fourteenth amendment, sexual orientation, family law, civil rights, fundamental rights