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Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh
ConLawNOW
Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the right and …
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Business Owners' Religious Objections To Same-Sex Marriage: The American Versus European Perspective, Lenka Křičková
ConLawNOW
This Article focuses on the Lee v. Ashers Baking Company case from the Supreme Court of the United Kingdom, a decision similar to that of the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Both cases involved bakers whose religious objections to same-sex marriage led them to refuse to sell cakes to gay customers. The Article discusses several common ideas appearing in these cases, mainly the need to distinguish between the message and the messenger when applying antidiscrimination law and the role of fundamental rights in the assessment. Based on this analysis, the Article then suggests …
On Marriage, Religious Freedom, Equality And Homosexuality: A Reply To Professor Huhn, George W. Dent Jr.
On Marriage, Religious Freedom, Equality And Homosexuality: A Reply To Professor Huhn, George W. Dent Jr.
ConLawNOW
As Professor Huhn says, there is much on which we agree. I concur that the Free Exercise Clause gives citizens no power to override an Equal Protection decision by the Supreme Court (his answer to his Question 1), or a decision of a state supreme court to compel legal recognition of same-sex “marriage” (SSM) (his answer to his Question 2). We part company, though, over the meaning of equality and its application to marriage.
Ten Questions On Gay Rights And Freedom Of Religion, Wilson R. Huhn
Ten Questions On Gay Rights And Freedom Of Religion, Wilson R. Huhn
ConLawNOW
I have prepared a series of ten questions that will progressively narrow the issues concerning gay rights and free exercise rights until we come to the principal point upon which Professor Dent and I disagree – the definition and application of the principle of equality.
Obergefell V. Hodges: How The Supreme Court Should Have Decided The Case, Adam Lamparello
Obergefell V. Hodges: How The Supreme Court Should Have Decided The Case, Adam Lamparello
ConLawNOW
In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …