A Union Unlike Any Other: Obergefell and the Doctrine of Marital Superiority

9 Pages Posted: 30 Aug 2015 Last revised: 20 Nov 2015

See all articles by Leonore Carpenter

Leonore Carpenter

Temple University - James E. Beasley School of Law

David S. Cohen

Drexel University Thomas R. Kline School of Law

Date Written: August 28, 2015

Abstract

Obergefell v. Hodges is a historic decision that accomplishes the important task of requiring marriage equality across the nation. To many, the opinion’s romantic language gives particular poignancy to the historic moment when the long-recognized fundamental right to marry was finally extended to same-sex couples.

However, what people see as the romance of the opinion masks a profoundly conservative decision, one that abandons meaningful equality analysis, and instead engages in a full-throated embrace of the conservative institution of marriage as an essential and necessary cornerstone of American society. In so doing, the decision advances a new and troubling doctrine of marital superiority that explicitly undercuts the dignity and worth of non-marital relationships. Much to the dismay of those who may have wished to allow states to experiment with other, more progressive relationship-recognition forms, Obergefell’s marital superiority rhetoric may guarantee that marriage will, for the foreseeable future, remain the only recognized relationship in town.

Keywords: marriage equality, Obergefell, right to marry, substantive due process, LGBT equality, fundamental rights

Suggested Citation

Carpenter, Leonore and Cohen, David S., A Union Unlike Any Other: Obergefell and the Doctrine of Marital Superiority (August 28, 2015). 104 Geo. L.J. Online 124 (2015); Temple University Legal Studies Research Paper No. 2015-36. Available at SSRN: https://ssrn.com/abstract=2652768 or http://dx.doi.org/10.2139/ssrn.2652768

Leonore Carpenter

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

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-4977 (Phone)

David S. Cohen (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
215-571-4714 (Phone)

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