Obergefell's Conservatism: Reifying Familial Fronts

10 Pages Posted: 28 Oct 2015

Date Written: October 27, 2015

Abstract

The Court’s reasoning in Obergefell v. Hodges is deeply problematic. In lieu of a straightforward and far more defensible decision based purely on the Equal Protection Clause, the Court’s reliance on the Due Process Clause required the Court to define marriage and explain its social importance. This meant the Court had to choose between competing images — social fronts — of marriage. If it had used an equal protection analysis, the Court would not have had to decide whether marriage is traditional or marriage is more plural. Instead, the Court would have espoused a thinner notion of marriage — that, whatever its essential nature, marriage must be available on equal grounds unless the state can convincingly argue otherwise. An equal protection analysis also would have obviated the need for Justice Kennedy’s paean to marriage.

There are two lamentable consequences of the Court’s framing. It unnecessarily disrespects people who in good faith have a different view of the social front of marriage. And it reifies marriage as a key element in the social front of family, further marginalizing nonmarital families and making it harder, rhetorically and substantively, to strengthen these already fragile families.

Suggested Citation

Huntington, Clare, Obergefell's Conservatism: Reifying Familial Fronts (October 27, 2015). Fordham Law Review, Vol. 84, No. 23, 2015; Fordham Law Legal Studies Research Paper No. 2681189. Available at SSRN: https://ssrn.com/abstract=2681189

Clare Huntington (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
212-636-6832 (Phone)

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