Extravagances of Thought and Expression: Rehabilitating Obergefell v. Hodges and the Symbiotic Relationship Between Writing and Legal Theory

Blog Post | 107 KY. L. J. ONLINE | October 12, 2018

Extravagances of Thought and Expression: Rehabilitating Obergefell v. Hodges and the Symbiotic Relationship Between Writing and Legal Theory

Sarah Laytham[1]

With Obergefell v. Hodges, the Supreme Court declared that same-sex marriages must be recognized throughout the United States, the same as marriages between a man and a woman.[2] In a scathing dissent, Justice Antonin Scalia commented that the majority opinion was distinctly light on theory—in his words, “lacking even a thin veneer of law.”[3] The crux of Scalia’s dissent depended on the representation of the majority’s opinion as surpassing the power of the Court, as superseding the legislature, and “as pretentious as its content is egotistic.”[4] This opinion is not uncommon and is shared by some who may approve of the result.[5]

Despite this, Obergefell does not represent a blip in Supreme Court history, detached from precedent. Between the “silly extravagances,”[6] Justice Kennedy’s majority opinion does lay out the rationale for the Court’s ruling, including an iteration of relevant case law.[7] Citing Lawrence v. Texas, United States v. Windsor, and Griswold v. Connecticut—among others—Kennedy asserts that this opinion is in keeping not just with the expectations of the public, but also with the Court’s precedent. [8]

Regarding the historical line of cases about fundamental rights, some might note the quotation of Justice Harlan’s dissent in Poe v. Ullman as representing a departure from the majority thread of past opinions.[9] This could act as a signal indicating a shift away from the main line of thought on unenumerated fundamental rights: the quote itself is largely for flavor but its inclusion is purposeful. Kennedy also cites Washington v. Glucksberg, an integral case in the consideration of unenumerated rights.[10] As the majority observes, Glucksberg recognized that substantive due process analysis has two primary features: the Due Process Clause protects those rights that are (1) “deeply rooted in this Nation’s history and tradition” and (2) required for both liberty and justice.[11] As the Obergefell majority notes, the petitioners invoked Glucksberg to question what they termed the “new and nonexistent ‘right to same-sex marriage’.”[12] Asserting the issue in this way begs the question, as the majority points out.[13] Loving v. Virginia did not concern “the right to interracial marriage,” nor did Turner v. Safley ask whether there was a right to “inmate marriage,” nor Zablocki v. Redhail the “right of fathers with unpaid child support duties to marry.”[14] Each case concerned the right to marry and whether there was sufficient justification for the burden or exclusion from the right.

Loving is, in many ways, a good comparison case for Obergefell. Loving reestablished the importance of marriage in the United States, and that there is no valid reason to keep two people of different races from being able to marry simply due to their races.[15] Loving holds that while marriage is generally subject to the state’s police power, that police power does not override the Fourteenth Amendment.[16] A unanimous Court decided Loving, and few find fault with its holding.[17] Upholding the right of same-sex couples to marry stands in the same tradition that decided Loving. In the vein of Loving, Obergefell does not “create” a right to same-sex marriage, but rather reaffirms the importance of marriage in the United States, both today and historically, ensuring that people are not barred from marriage without a sufficiently compelling reason. The fact that the drafters of the Fourteenth Amendment might not have contemplated same-sex marriage has as much meaning as the fact that those same drafters might not have intended for the amendment to make anti-miscegenation laws unconstitutional—what matters is the “broader, organic purpose” of the amendment.[18]

The fact that the writing in the majority opinion tends towards the more florid does not diminish the weight of the legal theory it espouses. Justice Scalia argues that a majority opinion should not be prone to such flights of fancy as those found in Kennedy’s majority opinion.[19] Scalia’s opinion assumes that no other majority opinion has ever been written with an eye for legacy or more flowery turns of phrase. Judge Richard Posner compares different opinion writing styles to historic poets, saying, “no one I suppose considers Shakespeare . . . inferior to Tennyson. They are merely different.”[20] The writing style is, at worst, an annoyance, that in no way detracts from the legal rationale itself.

Scalia alleges that Obergefell creates a fundamental right in the Fourteenth Amendment that the great legal minds of their day never found.[21] His dissent assumes that these legal thinkers “overlooked” the right that the majority creates,[22] when the reality is that these thinkers can hardly have overlooked a question they were never asked. Upon being asked, the Supreme Court of the United States reaffirmed the importance of equal protection and marriage.


[1] Volume 107 Staff Editor; J.D. Candidate, The University of Kentucky College of Law (2020).

[2] 135 S. Ct. 2584, 2607 (2015).

[3] Id. at 2628 (Scalia, J., dissenting).

[4] Id. at 2630.

[5] Ezra Klein, What Scalia’s same-sex marriage dissent gets right about the Supreme Court, Vox (June 26, 2015), https://www.vox.com/2015/6/26/8851495/same-sex-marriage-scalia.

[6] Obergefell, 135 S. Ct. at 2630 (Scalia, J., dissenting).

[7] Id. at 2596 (majority opinion).

[8] Id.

[9] Id. at 2598.

[10] Id. at 2602.

[11] Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

[12] Obergefell, 135 S. Ct. at 2602.

[13] Id.

[14] Id. (citing Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987)).

[15] Loving, 388 U.S. at 12.

[16] Id. at 6.

[17] See Sheryl Gay Stolberg, 50 Years After Loving v. Virginia, N.Y. Times (June 11, 2017), https://www.nytimes.com/2017/06/11/us/50-years-after-loving-v-virginia.html.

[18] Loving, 388 U.S. at 9.

[19] Obergefell, 135 S. Ct. at 2630 (Scalia, J., dissenting).

[20] Richard Posner, Judges’ Writing Styles (And Do They Matter?), 62 U. Chi. L. Rev. 1421, 1428−29 (1995).

[21] Obergefell, 135 S. Ct. at 2629−30 (Scalia, J., dissenting).

[22] Id.


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