Justice Ginsburg's Obergefell v. Hodges

Abstract

This Essay reconsiders the Court’s opinion in Obergefell v. Hodges with Justice Ginsburg as its author. As Justice Ginsburg has intimated, her opinion would have been more focused on the Equal Protection Clause rather than the Due Process Clause of the Fourteenth Amendment. But this Essay suggests that it is not only the Clause of the Fourteenth Amendment that would be distinct. Justice Ginsburg’s opinion would have been different in three essential ways from the one by Justice Kennedy for the Court: it would have been more doctrinally rigorous; it would have been less sentimental; and it would have jurisprudential integrity.

Keywords: Constitutional law; Same-sex marriage; Sexuality; Liberty; Due Process; United States Supreme Court