After Obergefell v. Hodges: The Continuing Battle Over Equal Rights for Sexual Minorities in the United States

Abstract

This article examines the pathbreaking U.S. Supreme Court decision in Obergefell v. Hodges that held same-sex marriage was a fundamental right that could not be denied by any state, despite the myriad same-sex marriage bans that had been passed in a majority of states. After explaining the constitutional jurisprudence of due process and equal protection, the article then examines the history of the same-sex marriage movement and the Obergefell decision. We conclude by discussing how the jurisprudential theory of the case, fundamental rights under the due process clause, narrows the scope of the case’s precedential value. Although gay rights activists were thrilled with the decision, it did not go as far toward mandating equal treatment for sexual minorities as they hoped, and the battle continues as activists now have turned toward abolishing discrimination in employment, housing, education, public accommodations, and the like.