We have added a few references which are indicated by brackets. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Sign up to receive a weekly email with news, analysis, and commentary from a voice you can trust! <> <>/Border[0 0 0]/Contents(CUNY School of Law)/Rect[439.4209 612.5547 540.0 625.4453]/StructParent 3/Subtype/Link/Type/Annot>> Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, while same-sex marriage might be good and fair policy, the Constitution does not address it, and therefore it is beyond the purview of the Court to decide whether states have to recognize or license such unions. obergefell v hodges substantive due process. And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? x��W�n�F��+�iw-���Y���n��xL�Y`8��yŦd�L�� A"DR�]�^�Zx���{ws��]�X���?���.��?�qw~ޯ6�λ������P���/]b���D�s}�5v���yX�^̮ھZwg?�W��7�M����'�RtZ/E$y�-oq��������+��G!��jޱ��x 194 0 obj . . 0000001770 00000 n . Justice Thomas also argued that the majority opinion impermissibly infringed on religious freedom by legislating from the bench rather than allowing the state legislature to determine how best to address the competing rights and interests at stake. endobj . )00�\آ��%֢�=g�.w�X�]R��i�s�k���� ]&^�HJ��nM�l��$�bb�=���X~H&y&�-�=����c�"�\����A5�cI�gs4�kwNi�| Essential excerpts from “Obergefell v. Hodges”: Dissenting opinion by Justice Scalia "But what really astounds is the hubris reflected in today’s judicial Putsch. In a 5-4 opinion, the Supreme Court held in Obergefell v. Hodges that states must license same-sex marriages and recognize such licenses issued by other states. endobj (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? See . . 191 0 obj <>stream . Eight of them grew up in east- and west-coast States. JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting. When I first read the Obergefell decision, I found myself skeptical. Z����1��J������QqFH�0�H(�.P�%�vV����'v^��p4��Pom��D�6�:l��6�l1��� �+H=z?Or�9J�*�kw.FV�j�����3�NE�H=������� (� >0�3@B �b � 1�M\#:`��0I��! endobj %%EOF With excerpts below from Justice Scalia’s dissent, we continue our serialization of what we think are the most important excerpts from the five opinions in the Supreme Court’s gay marriage decision in Obergefell v. Hodges on June 26, 2015. Justice Antonin Scalia and Justice Clarence Thomas joined in the dissent. Four of the nine are natives of New York City. 0000003337 00000 n 196 0 obj Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) endobj 0 Many more decided not to. �1�q�#6!WR�b�8��Y�9p� /Y���pC���v�o�����3 �%�>�o m�_%������Y�;ޚ @�r���5t+���F��\����s��Jqʾ4 �$2H̭��fPw�>��`��UF�LHp��m~�/~}r�wtD�ҪldW��T�2v��Hg/��X�d���$��5[�+\R�1J�@v�����c-���ƾ7� 193 0 obj The Fourteenth Amendment requires both marriage licensing and recognition for same-sex couples. endobj 198 0 obj 0000003791 00000 n Aside from these limitations, those powers “reserved to the States respectively, or to the people” can be exercised as the States or the People desire. xref By allowing a majority of the Court to create a new right, the majority opinion dangerously strayed from the democratic process and greatly expanded the power of the judiciary beyond what the Constitution allows. Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth. Justice Scalia argued that the question of whether same-sex marriage should be recognized is one for the state legislatures, and that for the issue to be decided by unelected judges goes against one of the most basic precepts of the Constitution: that political change should occur through the votes of elected representatives. <>/Border[0 0 0]/Contents()/Rect[72.0 612.5547 201.7549 625.4453]/StructParent 2/Subtype/Link/Type/Annot>> What Do Ricki Lake, Georgetown University and The Pill Have in Common? Yes, yes. Using Technology to Educate and Catechize. . endobj Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. endobj Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Ask the nearest hippie. Instead, this issue should be decided by individual state legislatures based on the will of their electorates. . Justice Antonin Scalia's dissent in Obergefell v Hodges-- the case that declared that denying same-sex couples marriage licenses violated the equal protection and due process clauses of the Fourteenth Amendment -- is best known for its tantrums and, as usual for the politician Scalia is rather than the jurist he is supposed to be, its hypocrisy. L e t u s k n o w ! In his separate dissent, Justice Scalia wrote that the majority opinion overstepped the bounds of the Court’s authority both by exercising the legislative, rather than judicial, power and by doing so in a realm that the Constitution reserves for the states. endobj Media. And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. . The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Hodges Opinions More Demonstrators stand in front of a rainbow flag at the Supreme Court in Washington on April 28 as the court was set to hear arguments regarding same-sex marriage in Obergefell v. In all the cases, the trial court found in favor of the plaintiffs. What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. 204 0 obj . . <> Excerpt from the dissents of Justices Thomas and Alito will be published in each of the next three days. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today) [Windsor]: [R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” “[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”.

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