Fourteenth Amendment Commons^™

Dissenting From History: The False Narratives Of The Obergefell Dissents, Christopher R. Leslie

Indiana Law Journal

According to a quote attributed to numerous philosophers and political leaders, “History is written by victors.”1 In the legal battle over same-sex marriage, those opposed to marriage equality have attempted to disprove this age-old adage. In response to the majority opinion in Obergefell v. Hodges—which held that state laws banning same-sex marriage violate the Fourteenth Amendment—each of the four dissenting Justices issued his own dissenting opinion. Every one of these dissents misrepresented the circumstances and precedent leading up to the Obergefell decision. Collectively, the Obergefell dissenters have valiantly tried to rewrite America’s legal, constitutional, and social history, all in an …

Fundamental Rights In A Post-Obergefell World, Peter Nicolas

Articles

In this Article, I identify and critically examine three substantive criticisms raised by the dissents in the Supreme Court's 2015 decision in Obergefell v. Hodges, which struck down state laws and constitutional provisions barring same-sex couples from marrying within the state or having their out-of-state marriages recognized by the state. First, that the majority improperly framed the right at issue broadly as the right to marriage instead of narrowly as the right to same-sex marriage, conflicting with the Court's holding in Washington v. Glucksberg that in fundamental rights cases the right at issue must be framed narrowly, and in …

The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi

Yuvraj Joshi

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor and continuing in Obergefell, the narrative began to change. Dignity veered …

More Than A Piece Of Paper: Same-Sex Parents And Their Adopted Children Are Entitled To Equal Protection In The Realm Of Birth Certificates, Shohreh Davoodi

Chicago-Kent Law Review

In Adar v. Smith, the Fifth Circuit held that Louisiana’s policy of refusing to issue accurate birth certificates to the children of out-of-state, same-sex adoptive parents does not deny those families equal protection of the law. This comment demonstrates that Louisiana’s policy does in fact violate the Equal Protection Clause. There are two ways Louisiana’s policy infringes on the rights of these families. First, the policy burdens fundamental rights stemming from the family autonomy of both parents and children. Second, the policy discriminates against out-of-state same-sex parents, treating them like second-class citizens. These concerns are strong enough that the …

Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer

Nancy J. Knauer

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws …

Texas Hold ’Em - The State Refuses To Allow Same-Sex Couples Married Elsewhere To Get Divorced. Is This The Next Constitutional Showdown Over Marriage Equality?, Sonja R. West, Dahlia Lithwick

Popular Media

The court papers don’t tell us all that much about what happened between the couple described only as “J.B.” and “H.B.” We can assume there once was love and then, at some point, there wasn’t. Their parting, we’re told, was amicable. The problem is that J.B. and H.B. are both men. The other problem is that they live in Texas. The two were married in Massachusetts in 2006, where same-sex marriage has been legal since 2004. They later moved to Texas, and now want to get divorced. Texas, however, won’t let them. And they cannot get divorced in Massachusetts either, …

What Is Anthony Kennedy Thinking?, Sonja R. West

Popular Media

Supreme Court watchers have long made a national sport out of parsing Justice Anthony Kennedy’s every word. From issues as diverse as the death penalty, terrorism, and gay rights, Kennedy has been the only conservative justice to vote with the court’s more liberal wing. It’s not surprising, therefore, that as we wait for the court’s decision on same-sex marriage bans, the search for clues to Kennedy’s thinking has shifted into high gear.

In March, during the oral argument about California’s same-sex marriage ban, Kennedy said that he was “trying to wrestle” with a “difficult question” about the constitutionality of same-sex …

Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif

Jacob M Reif

No abstract provided.

Why Obama’S Words Didn’T Go Far Enough, Sonja R. West, Dahlia Lithwick

Popular Media

When President Obama announced his support of same-sex marriage, he talked broadly about “equality” and “fairness.” He spoke of “opposing discrimination against gays and lesbians” and making sure that nobody is treated as “less than full citizens when it comes to their legal rights.” It was a powerful moment—historic and emotional. In the Aaron Sorkin version, the orchestra would have soared at this point as the supporting cast members exchanged teary-eyed yet knowing nods.

But then President Obama described how these rights should be protected and the music stopped with a squawk. Same-sex marriage, he said, is not in fact …

Marriage In California: Is The Federal Lawsuit Against Proposition 8 About Applying The Fourteenth Amendment Or Preserving Federalism? , Charles M. Cannizzaro

Pepperdine Law Review

No abstract provided.

I Do. Is That Okay With You?: A Look At How Most States Are Circumventing The Full Faith And Credit Clause And Equal Protection Clause To Not Recognize Legal Same-Sex Marriages From Other States And Its Effect On Society, Rebecca Hameroff

Florida A & M University Law Review

Due to statutes, bans, and the Federal Defense of Marriage Act, states do not have to recognize legal same-sex marriages from sister states that recognize same-sex marriage. This paper examines the denial of the fundamental right to marriage for same-sex couples, the violation of the Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution and Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by not recognizing same-sex marriages legally performed in other states. It starts by looking at the impact these practices have on same-sex couples and the toll it …

Polygamy And Same-Sex Marriage, David L. Chambers

Articles

In the American federal system, state governments bear the responsibility for enacting the laws that define the persons who are permitted to marry. The federal government, throughout our history, has accepted these definitions and built upon them, fixing legal consequences for those who validly marry under state law. Only twice in American history has Congress intervened to reject the determinations that states might make about who can marry. The first occasion was in the late nineteenth century when Congress enacted a series of statutes aimed at the Mormon Church, prohibiting polygamy in the Western territories and punishing the Church and …