Obergefell v. Hodges: Rethinking Justice Scalia's Originalism

Abstract

Since Ronald Reagan appointed Justice Antonin Scalia to the U.S. Supreme Court in 1986, Scalia’s jurisprudence and judicial activity have been the subject of significant scholarly attention. The thesis of this article centers on the methodology adopted by the Court to create new unenumerated constitutional rights, and how Justice Scalia often rejects such methodology. In doing so, this article provides a critical analysis of the majority opinion in Obergefell v. Hodges, as well as the dissent of Justice Scalia. The article sheds light on the shortcomings of Justice Scalia's approach in his vicious attack on the Court for recognizing same-sex marriage as a constitutional right protected by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. However, this casts him as a pragmatic interpreter of the constitution more than an originalist. For the purposes of this article, my intention is not to digress into an analysis of the majority opinion in Obergefell. Instead, my primary focus will be to consider Justice Scalia's dissent. In doing so, I emphasize Scalia’s main disagreements with the majority before analyzing his dissent in an attempt to demonstrate how Justice Scalia, in several dissenting points, departed from originalist theory to a more pragmatic approach of constitutional construction.

Keywords: Obergefell v. Hodges, Same-sex Marriage, Constitutional Rights, Constitutional Interpretation, Originalist, Pragmatism.