When One's Right to Marry Makes Others 'Unmerry'

39 Pages Posted: 22 Aug 2015

See all articles by Shai Stern

Shai Stern

Bar-Ilan University - Faculty of Law

Date Written: August 20, 2015


The Supreme Court’s ruling in Obergefell v. Hodges recognized the constitutional right of same-sex couples to marry in all fifty states. The Court premised its ruling on the understanding that a person's ability to marry another person of his or her choosing is one of the most fundamental liberties protected by the Constitution. Some regard the Court's ruling in Obergefell v. Hodges as the end of a long fight for the liberation of the institution of marriage from the shackles of tradition. Yet others, who oppose same-sex marriage for religious reasons, regard it as another ultra-liberal intervention by the state — one which further weakens their ability to exercise their values and beliefs. The Court’s decision, therefore, may be regarded as a contemporary peak in a seemingly endless, centuries-long clash between liberal states and diverse cultures and religions characterized by illiberal norms. Critics argue that it sharpens a perceived conflict between the constitutional rights of human liberty and freedom of religion. In contrast, this Essay suggests that Obergefell should be seen as a step toward reconciling this ongoing tension. By pointing to the implicit consensus reached by all Supreme Court Justices, this Essay argues that Obergefell manifests the state's pluralistic obligation to ensure a diverse society. This obligation maintains a balance between the goals of ensuring equal rights of all citizens and recognizing the limited ability of religious communities to reject liberal norms while preserving their social legitimacy.

Keywords: Obergefell v. Hodges, Constitutional law, Right to marry, same sex marriage, Human rights

Suggested Citation

Stern, Shai, When One's Right to Marry Makes Others 'Unmerry' (August 20, 2015). Albany Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2648133

Shai Stern (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900

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