Concurring Opinion in What Obergefell v. Hodges Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Same-Sex Marriage Decision
Jack Balkin ed., Yale University Press, Forthcoming 2020
23 Pages Posted: 13 May 2020
Date Written: May 13, 2020
Professor Smith writes one of eight opinions in WHAT OBERGEFELL V. HODGES SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERTS REWRITE AMERICA’S SAME-SEX MARRIAGE DECISION (Jack Balkin, ed., Yale Univ. Press, forthcoming 2020). In this chapter, Smith concurs with the majority opinion recognizing the right of same-sex couples to marry under the suspect classification and fundamental rights strands of equal protection law. She offers an independent, and heretofore unrecognized, basis for striking down same-sex marriage bans: they violate the children of same-sex couples’ equal protection rights.
Smith’s opinion interprets five landmark Supreme Court decisions anew – Levy v. Louisiana, 391 U.S. 68 (1968); Weber v. Aetna Casualty & Surety Company, 406 U.S. 164 (1972); Brown v. Board of Education, 347 U.S. 483 (1954); Plyler v. Doe, 457 U.S. 202 (1982); and United States v. Windsor, 570 U.S. 744 (2013) – as children’s rights cases. Read collectively, this children’s equality law prohibits government practices that create or maintain a caste system by excluding a group of children from state-granted benefits, resources, and privileges. Smith finds that same-sex marriage bans run afoul of the children of same-sex couples’ equal protection guarantee because they impose lifetime hardships on them for matters beyond their control, relegating them to a lower caste status.
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