Justice Kennedy's Decision in Obergefell: A Sad Day for the United States Supreme Court

Houston Law Review Off the Record, Forthcoming

17 Pages Posted: 4 Jul 2015 Last revised: 13 Aug 2015

Date Written: July 2, 2015


Same-sex couples have a constitutional right to marriage under the Equal Protection Clause, not under Justice Kennedy’s self-serving and ever-changing definition of liberty. The long-term impact of Kennedy’s decision will be to the Court’s institutional legitimacy. Chief Justice Roberts emphasized that the legitimacy of this Court ultimately rests “upon the respect accorded to its judgments,” which is based on the perception — and reality — that we exercise humility and restraint in deciding cases according to the Constitution and law.” Justice Kennedy’s decision eschewed these values, giving the Court the power to discover “new dimensions of freedom,” and to ensure that all citizens, through the Court’s reasoned judgment, are afforded the fullest promise of liberty. Nothing is more dangerous to democracy than a court that substitutes reasoned judgment for the rule of law, and contemporary attitudes for constitutional imperatives. Justice Scalia echoed this sentiment when he wrote separately “to call attention to this Court’s threat to American democracy.” In the end, Justice Kennedy decision, like those in Planned Parenthood, Lawrence, and Windsor, show that the “Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Keywords: Obergefell v. Hodges, Justice Kennedy, same-sex marriage, Supreme Court of the United States, due process, equal protection

JEL Classification: K40

Suggested Citation

Lamparello, Adam, Justice Kennedy's Decision in Obergefell: A Sad Day for the United States Supreme Court (July 2, 2015). Houston Law Review Off the Record, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2626172 or http://dx.doi.org/10.2139/ssrn.2626172

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