What's Wrong with Obergefell

47 Pages Posted: 25 Sep 2018

Date Written: September 12, 2018


Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supreme Court’s glorification of marriage created widespread anxiety among progressive family law scholars. Yet, the critics have still not explained why this marriage rhetoric arouses such moral indignation. Some critics predict Obergefell’s rhetoric will shape family and constitutional law in ways that harm nonmarital families, but these forecasts rely on weak doctrinal arguments and cynical speculation about judicial behavior. Others argue Obergefell’s rhetoric was gratuitously insulting. Is that as deep as the objection goes?

Obergefell’s glorification of marriage is wrong, not because it was harmful or hurtful, but because its rhetoric denies the equal dignity of citizens in nonmarital families. For a state to treat all citizens as equals, officials must justify the law with reasons that all can accept as reasonable, even if mistaken. That is why Obergefell could justifiably ignore religious objections to same-sex marriage. If marriage law rests on the idea that different-sex relationships are more valuable, then it treats gay and lesbian persons as second-class citizens who enjoy full legal rights only if they adopt someone else’s vision of the good life. Unfortunately, Obergefell commits a similar sin. The Court glorifies marriage as a secular ideal for family life and authorizes states to encourage marriage as an ideal family form. People in nonmarital families cannot accept this as a reasonable basis for law. Obergefell’s glorification of marriage violates the ideal of public reason in a way that denigrates nonmarital families and contradicts the opinion’s own legal commitment to equal dignity.

Keywords: family law, marriage, constitutional law, public reason, liberalism

Suggested Citation

Strauss, Gregg, What's Wrong with Obergefell (September 12, 2018). Cardozo Law Review, Vol. 40, (2018 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3248693

Gregg Strauss (Contact Author)

UVA Law School ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-1819 (Phone)

HOME PAGE: http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/2575027

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