Revisiting Obergefell: Dynamic implications according to Sedgwick (Part 1)

In this three part series, the key findings in the landmark court case Obergefell v. Hodges (2015) will be laid out in Part 1, then, modern day court challenges will be addressed in Part 2. Finally, in part 3, a close reading of Eve Kosofsky Sedgwick’s Tendencies reveals what threats to LGBTQ+ rights could mean for queer community members.

To begin, Obergefell was initially brought to the court when same-sex couples sued four different states due to constitutional problems with their bans on same-sex marriage (Oyez). These states also refused to acknowledge same-sex marriage, even if officially recognized where they took place. 

So, the suit came under claims of violations to the Equal Protection Clause, Due Process Clause, and one group added the Civil Rights Act. While the trial court ruled in favor of the same-sex couples, when brought to the Six Circuit U.S. Court of Appeals the judges reversed the ruling (Oyez). This was then appealed again and the Supreme Court of the United States (SCOTUS) granted certiorari, or in other words, agreed to hear the case. 

In a 5-4 decision, Justice Anthony Kennedy authored the opinion of the court. The court used the Due Process Clause and Equal Protections Clause of the Fourteenth Amendment to argue that same-sex marriage is a fundamental liberty that shall be allowed and protected. Another way to say this is that Justice Kennedy looks at the new generation’s expanding meaning and understanding of liberty which requires extending constitutional freedoms to those who were previously excluded due to history and tradition (Chander). 

Right off the bat, there was pushback from the conservative judgeship. Chief Justice John Roberts dissented, in which he used textualism and strict constructionism in order to argue that the Constitution does not directly address same-sex marriage, so it is not up to SCOTUS to rule on it (Oyez). Instead, Roberts believes that it should be up to state and local legislatures to adjudicate based on their discretion. As expected from this strict constructionist view, Roberts continues to criticize the majority’s expansion of the Fourteenth Amendment. 

Justice Scalia was so compelled by this cause that he also felt the need to author his own dissenting opinion. In which he argued that SCOTUS overstepped its bounds of authority, extending into the duties of the legislative branch instead of remaining within the scope of their judicial authority (Oyez). Similar to Roberts, Scalia believed that it should be up to state and local legislatures, who are made up of elected officials, in order to adjudicate on the issue. 

In addition to both Roberts and Scalia, Justice Clarence Thomas and Justice Samual Alito also wrote their own dissenting opinions. While Thomas made an argument about going too far with substantive due process, Alito argued a similar case to Roberts, taking a strict constructionist, textualist approach (Oyez). 

It is by no means common to see every single dissenting justice author their own opinion, but such strong feelings accurately foreshadows the pushback this 2015 doctrine would come to face over the next ten years. These challenges will be addressed in the following part two, alongside commentary stemming from Eve Kosofsky Sedgwick’s book Tendencies to argue why Obergefell should be here to stay. 

Works Cited

Chander, Paul. “April 22 Lecture.” LAW 100: Constitutional Law, 22 April 2024, University of Southern California, Seeley G. Mudd Building. Lecture

“Obergefell v. Hodges.” Oyez, www.oyez.org/cases/2014/14-556.