Exploring the Boundaries of Obergefell

42 Pages Posted: 3 Apr 2016 Last revised: 9 Mar 2017

See all articles by Andrew Pecoraro

Andrew Pecoraro

College of William and Mary, Marshall-Wythe School of Law

Date Written: April 1, 2016


Celebrations erupted around the United States when the Supreme Court announced their ruling in Obergefell v. Hodges — that same-sex couples have a constitutional right to marry. In a 5-4 decision, the Court held that the right to marry is a “fundamental right inherent in the liberty of the person” and that individual states cannot discriminate against a couple on the basis of sexual orientation.

Yet one same-sex couple in Pennsylvania was informed that they could still not get married. In 2012, to obtain some legal recognition of their relationship, Nino Esposito and Drew Bosee, like many other gay couples chose to have one adopt the other. And in Pennsylvania, adopted relatives are prohibited from marrying under the state incest statutes. So now, this couple, although they have been in a loving, committed union for over forty years, cannot have their actual relationship recognized because they are technically father and son.

This Note posits that the Court’s historical treatment of a “right to marry” combined with Justice Kennedy’s rationale in Obergefell and the grounding of the analysis in the Due Process Clause will open the door to the recognition of other relationship constructs, such as incestuous relationships between consenting adults. Some scholars have argued that the criminalization of incest, as in the sexual act itself, may no longer enjoy any constitutional validity, but very few have considered how the Court’s changing jurisprudence may affect civil bans on marriage between close relatives. The intent of this Note is not to advocate for the recognition of incestuous marriage, or for a change in any of the current laws related to incest. Rather, this Note analyzes how the majority’s rationale for finding that the right to marry extends to same-sex couples raises significant questions regarding the historical justification for bans on incestuous marriage that have not been recently challenged.

Keywords: Obergefell, incest, due process, equal protection, marriage, same-sex marriage

Suggested Citation

Pecoraro, Andrew, Exploring the Boundaries of Obergefell (April 1, 2016). William & Mary Law Review, Vol. 58, 2017, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2757867

Andrew Pecoraro (Contact Author)

College of William and Mary, Marshall-Wythe School of Law ( email )

Williamsburg, VA
United States

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