Obergefell and the Reconstituting of America

34 Pages Posted: 14 Sep 2018

Date Written: 2018


We typically assess Supreme Court decisions in legalistic terms, and sometimes in more instrumentalist or pragmatic terms. So we ask whether a decision is justified under conventional legal reasoning, and we try to predict the practical consequences of a decision. But major constitutional decisions – Whitney v. California, West Virginia Board of Education v. Barnette, Brown v. Board of Education – may have an even more important function in expressing and, crucially, shaping and constituting our national self-understanding. This essay, written for a conference at the John Paul II Institute on “The Implications of Obergefell and Its Aftermath for Law and the Human Person,” argues that although it is largely futile to consider Obergefell in legalistic terms – the decision scarcely even pretends to offer a legal rationale and although the decision’s practical consequences for marriage and family are speculative, the decision is crucially important in its symbolic and community-constituting aspects. Perhaps Obergefell’s most significant feature is that it authoritatively embraces a conception of America that is “progressive” and that marginalizes faith and tradition as components of our national character.

Keywords: Obergefell, Obergefell v. Hodges, 14th Amendment, Public Symbols

JEL Classification: K10, K36

Suggested Citation

Smith, Steven Douglas, Obergefell and the Reconstituting of America (2018). San Diego Legal Studies Paper No. 18-364. Available at SSRN: https://ssrn.com/abstract=3249727 or http://dx.doi.org/10.2139/ssrn.3249727

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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