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I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

A substantive due process analysis required the Court to define marriage and explain its social importance. This meant the Court had to choose between competing images — social fronts — of marriage. If it had used an equal protection analysis, the Court would not have had to decide whether marriage is traditional or marriage is more plural. Instead, the Court would have espoused a thinner notion of marriage — that, whatever its essential nature, marriage must be available on equal grounds unless the state can convincingly argue otherwise. An equal protection analysis also would have obviated the need for Justice Kennedy’s paean to marriage.

There are two lamentable consequences of the Court’s framing. It unnecessarily disrespects people who in good faith have a different view of the social front of marriage. And it reifies marriage as a key element in the social front of family, further marginalizing nonmarital families.


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