Document Type

Working Paper

Publication Date

2016

Center/Program

Center for Gender & Sexuality Law

Abstract

Professor Jack Balkin has assembled a group of 9 scholars and advocates to write opinions in the Obergefell v. Hodges case for a forthcoming volume, What Obergefell Should Have Said (Yale University Press 2017). Balkin writes for the majority of the Court and I provide a concurrence along with a short commentary explaining my approach and reasoning. In summary, I conclude that: Laws barring same-sex couples from eligibility for licensure as civil marriages violate the Equal Protection Clause of the Fourteenth Amendment because they find their origin in and perpetuate notions of heterosexual supremacy, and have the aim and effect of imposing a badge of inferiority on gay men and lesbians more generally. In so finding I reject an approach to equality grounded in classification, preferring instead one that focuses on principles of anti-subordination. Given that the real parties in interest in this action include all gay men and lesbians, the underlying values of equal protection could only be served if the Court were to avoid a remedy that ameliorated one form of inequality while simultaneously exacerbating yet another. For this reason, the only remedy that would be equality-enhancing overall would be one that disestablished the institution of civil marriage altogether. It would then be left to the states to devise a more equitable means by which to secure the economic and legal interests of its citizens; one that does not rest on status hierarchies that run afoul of fundamental values of equality and democracy.

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