Obergefell's Legacy

Posted: 21 Nov 2017

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

Date Written: November 17, 2017

Abstract

In Obergefell v. Hodges, the United States Supreme Court struck down same-sex marriage bans as a violation of federal constitutional guarantees. The decision was very important for same-sex couples and their families, and may well be the springboard for the recognition of additional rights for sexual minorities and other marginalized groups. Yet, Obergefell is surprising in both form and focus, which complicates not only predicting the decision’s effects but even inferring what the opinion is trying to do beyond striking down the bans. This article discusses Obergefell’s analysis of due process and equal protection guarantees, explaining some of the ways in which the opinion complicates the jurisprudence, and concludes that Obergefell is so open-ended that it could provide the basis for restricting or expanding equal protection and due process guarantees.

Keywords: due process, equal protection, fundamental interest, dignity, equality, liberty, Glucksberg

JEL Classification: K10

Suggested Citation

Strasser, Mark, Obergefell's Legacy (November 17, 2017). 24 Duke Journal of Gender Law & Policy 61-88 (2016), Available at SSRN: https://ssrn.com/abstract=3073320

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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