What Obergefell v. Hodges Should have Said

Connie S. Rosati University of Arizona

In Obergefell v. Hodges, Justice Anthony Kennedy, writing for the majority, held that under the Fourteenth Amendment, the States must license marriages between persons of the same sex and must recognize valid marriages of same-sex couples performed elsewhere.This landmark opinion strikes many of us as not only morally correct but constitutionally correct, at least in its outcome, and yet we would have welcomed more solid reasoning in support if it. The difficulty isn’t merely that Justice Kennedy’s reasoning is somewhat obscure; and it isnot, as Justice John Roberts argues in his dissent, that it deviates from the Supreme Court’s doctrinal test under the Due Process Clause. Rather, the difficulty is that his reasoning, while rightly avoiding the Court’s problematic test, fails adequately to justify this departure, and most important, fails to put a clear and more plausible test in its place. Yet Justice Kennedy’s reasoning provides materials that might be used in formulating an improved test. In this article, I critically examine the Court’s test for fundamental rights under the Due Process Clause, as presented by Roberts in Obergefell v. Hodges, and develop a more plausible test that draws on elements of Kennedy’s suggestive opinion.