Obergefell’s Missed Opportunity

14 Pages Posted: 6 Aug 2016

See all articles by Catherine E. Smith

Catherine E. Smith

University of Denver Sturm College of Law

Date Written: August 4, 2016


Obergefell v. Hodges will take its rightful place among landmark gay rights cases. The groundbreaking decision, however, also represents a missed opportunity by the Supreme Court to protect the constitutional interests of another group - children.

The Obergefell majority acknowledged marriage bans’ detrimental impact on children of same-sex couples seeking to marry, yet failed to recognize their constitutional rights as separate and distinct from those of their parents. In fact, recognizing the children’s rights would actually have been consistent with prior equal protection law precedent. The Supreme Court has previously struck down laws that treated children of unwed parents and children of undocumented parents unequally in order to force their parents to behave a certain way. Same-sex marriage bans engaged in the same prohibitive practice – they denied children of same-sex couples legal protections enjoyed by similarly situated children of married opposite-sex couples as a way to force their same-sex parents (and unmarried opposite-sex couples) to behave according to state-sanctioned moral and social norms.

This article argues that an important line of civil rights cases omitted from Obergefell – Brown v. Board of Education, Levy v. Louisiana, and Plyler v. Doe – should also be viewed as important precedent about the rights of children. In the future, these cases should be at the center of the Supreme Court’s analysis when kids bear the brunt of state practices that seek to control the conduct of adults.

Suggested Citation

Smith, Catherine E., Obergefell’s Missed Opportunity (August 4, 2016). Law and Contemporary Problems, Vol. 79, No. 223, 2016; U Denver Legal Studies Research Paper No. 16-28. Available at SSRN: https://ssrn.com/abstract=2818592

Catherine E. Smith (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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