What a Dissenting Opinion Should Have Said in Obergefell v. Hodges

Abstract

This is my contribution to a project organized by Jack Balkin under the heading “What Obergefell v. Hodges Should have Said.” A number of legal scholars participated as though they were Supreme Court justices deciding Obergefell. My contribution is a dissent. Although the outcome of the case was an improvement in the institution of marriage, it was not appropriate for the courts to make such a fundamental change. Marriage as an institution belongs in each state to the people of that state and fundamental changes in the institution should be made legislatively (as they have been in almost every other country in the world that has established marriage equality). This is not just an a fortiori consequence of a general hostility to judicial review. Even if one accepts that judicial review of legislation is the appropriate remedy for a case like Loving v. Virginia, there are considerations that sharply differentiate the decision in that case from the transformation of marriage that took place as a result of the Obergefell decision.

Keywords: democracy, judicial review, legislation, marriage, Obergefell, social institutions