In the Supreme Court case, Obergefell v. Hodges, Justice Kennedy ruled that under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, all states must license and recognize marriages between same-sex couples in the same way as straight couples are able to be licensed and recognized (Kennedy 1). Kennedy held that the Constitution’s promise of liberty to all in the Due Process Clause includes the freedom to marry someone of the same sex and bring up children (Kennedy 14). He also invokes the Equal Protection Clause, in saying that it can “help to identify and correct inequalities in the institution of marriage,” such as that with the case of same-sex marriage (Kennedy 21). While the institution of marriage had once been thought of to solely be between one man and one woman, that idea had changed, and according to Kennedy, the Equal Protection Clause could be used to protect groups who were discriminated against or who did not have equal protection under the law, such as same-sex couples who were seeking out marriage.
Justice Scalia dissented from the majority opinion of the Court due to his belief that the Fourteenth Amendment could not extend to a requirement of states to recognize and license marriages between two people of the same sex. In his eyes, marriage was not debated when the Fourteenth Amendment was actually written, so it should not be used as a basis to make the decision to allow same-sex marriage (Scalia 4). Scalia believed that this was an example of the judicial overreach of the court because it was a very unrepresentative Court who made the ultimate decision about same-sex marriage (Scalia 6).
In my opinion, Kennedy’s main argument that gay marriage is protected under the Due Process Clause sounded like a very far stretch from what was actually written in the Constitution. In this respect, I agree with Scalia that the Due Process clause of the Fourteenth Amendment should not be extended to a protection of same-sex marriage because it simply does not make sense. His other argument about the Equal Protection Clause is a much more valid argument but he spends much less time with it. While I do believe that it was a monumental decision in American and queer history, I do think that much of Kennedy’s argument was an over-reach, especially in regards to the Due Process Clause.
