Statement from Brooklyn Law School Professor William D. Araiza on Supreme Court same-sex marriage decision
On Friday, June 26, the Supreme Court announced its long-awaited decision on same-sex marriage. In Obergefell v. Hodges, a five-justice majority held that both the Due Process and the Equal Protection clauses protected the rights of same-sex couples to wed. Justice Anthony Kennedy, who wrote the opinion, has long been the Court’s swing vote on gay rights issues. Justice Kennedy’s analysis rested squarely on what he described as the “fundamental” right to marry. After noting the history of the Court’s constitutional protection of the institution of marriage, he explained that the reasons the Court accorded that protection — reasons that included protection for individual autonomy and for family units — applied equally to same-sex couples.
Strikingly, Chief Justice Roberts and Justices Scalia, Thomas and Alito all wrote separate dissents. While their tones and arguments varied, they all argued the Court had acted inappropriately in deciding the marriage rights issue rather than allowing the political process to settle the question.
In many ways this decision was not a surprise. Justice Kennedy has long been understood to have a libertarian streak, and his opinions in earlier gay rights cases have featured soaring rhetoric about individual liberty and autonomy. Yet, he has sometimes signed on to opinions that counseled caution before the Court announced the existence of substantive rights under the Due Process Clause. For this reason, it is surprising that he did not focus more heavily on equal protection — a theory he embraced in his decision, but which played a decidedly supporting role in his analysis. Whether Justice Kennedy’s opinion presages a more general evolution in his thinking about substantive rights under the Due Process Clause, or whether instead his more accommodating attitude toward such rights is somehow limited to gay rights issues, is something to watch for in the future.
