A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances. This essay considers the distinct ways in which the civil rights and social movements for…

The battle over same-sex marriage centered on children, with both sides claiming to be the guardians of children’s welfare. Although marriage equality undoubtedly represents a victory for diverse families, the focus on children has also had the detrimental impact of imposing a traditional parenthood paradigm. Specifically, the Obergefell v. Hodges opinion reflects a maternalist…

This essay critically assesses Justice Kennedy’s opinion in Obergefell v. Hodges, which declared unconstitutional state laws and constitutional provisions barring same-sex couples from lawfully marrying in the state or having their lawful out-of-state marriages recognized by the state. While acknowledging the important role that Justice Kennedy has played in advancing the cause of gay…

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt…

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…

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the…