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A Critical Analysis of Obergefell vs.

Hodges
This landmark judgement revolves around James Obergefell and John Arthur James from
Ohio who filed a lawsuit challenging the states refusal to recognize same sex marriage on
death certificates. James Arthur was diagnosed with ALS in the year 2011 and hence, the
couple decided to tie the knot in Maryland due to same sex marriage being illegal in Ohio. By
a mutual decision it was agreed that Obergefell will be named as surviving spouse on James
death certificate. There was a temporary order issued in order to recognize their marriage in
the State of Ohio. However, Arthur passed away before the court proceedings could officially
begin.
The main contention in this case is that the act of refusing to recognize marriages taken place
in other states as well as banning the same-sex marriage violated the Equal Protection Clause
and the Due Process Clause of the Fourteenth Amendment. Hence, two questions were put
forth before the Supreme Court which was that whether Fourteenth Amendment required a
state to license a marriage between two people of the same sex? And whether the Fourteenth
Amendment required a state to recognize a marriage between two people of the same sex that
was legally licensed and performed in another state?
The Supreme Court basically argued in favour of same sex marriage. Justice Kennedy gave
the majority opinion by stating that the Due Process Clause of the Fourteenth Amendment
guaranteed the right to marry as a fundamental liberty which it aimed to protect which
includes same-sex couples as well. Past cases have shown that the right to marry is a
fundamental liberty as it aims to protect the most common and intimate association between
two people. Marriage is a sacred union which safeguards children and families and gives a
legal recognition to the union. There is absolutely no difference between a same-sex couple
and an opposite-sex couple. Thus, the very act of excluding same-sex couples from the right
to marry is violating the essence of Due Process Clause of the Fourteenth Amendment. He
went on to add that the Equal Protection Clause of the Fourteenth Amendment also
guarantees the right of same-sex couples to marry and any denial of this right would deny
same-sex couples equal protection under the law. The Court even looked into the principles of
religious institutes and added that the institutes can refuse to marry a same-sex couple, but
they dont have the right to make marriage laws for the society at large.
This case was the result of the decades of activism that made the idea of gay marriage seem
plausible, desirable, and right. However, there were certain judges who gave the dissenting
opinion. All the four judges wrote different dissenting opinions. Chief Justice Roberts along
with Justice Samuel Alito, began by arguing that same-sex marriage although may be good
isnt recognized by the Constitution and it doesnt fall within the courts purview to address
such union. Rather, the issue needs to be decided by individual state legislatures whether they
want to shift from the traditional definition of marriage. Justice Scalia, while agreeing with
the above went on to add that the Court was exceeding its role of judiciary to legislature
which diminished the concept of separation of power. Further, Justice Thomas added that the
majority opinion stretched the doctrine of substantive due process rights found in the

Fourteenth Amendment too far and in doing so distorted the democratic process by taking
power from the legislature and putting it in the hands of the judiciary.
References:

1. Richard Lempert, Obergefell v. Hodges: Same sex marriage & cultural jousting at the
Supreme Court, June 29, 2015, http://www.brookings.edu/blogs/fixgov/posts/2015/06/29obergefell-same-sex-marriage-lempert
2. How

Gay Marriage Became a Constitutional Right, The Atlantic,


http://www.theatlantic.com/politics/archive/2015/07/gay-marriage-supreme-courtpolitics-activism/397052/