January 13, 2016 Articles

Understanding the Equal Liberty and Intimate Association Doctrinal Underpinnings of Obergefell v. Hodges

Between Obergefell's equal liberty and intimate association doctrinal underpinnings, the case is powerful in its potential precedential force, unlocking future avenues of constitutional argument.

By Nancy C. Marcus – January 13, 2016

As have past decisions on lesbian, gay, bisexual, and transgender (LGBT) rights written by Justice Kennedy, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), has received criticism from some quarters for its liberty analysis, which some critics attack as an undemocratic usurpation of power by the judiciary and others condemn as too obscure. See, e.g., David Upham, “Symposium: A Tremendous Defeat for ‘We the People’ and Our Posterity,” Scotusblog, June 26, 2015; Paul Horwitz, “The Same-Sex Marriage Decision,” Commonweal Mag., July 10, 2015.

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