What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision

Format: Paperback / softback
Length: 400 pages
Publication date: 05 January 2021
Publisher: Yale University Press

Rewriting the Supreme Court's landmark gay rights decision, Jack Balkin and an all-star cast of legal scholars, sitting as a hypothetical Supreme Court, rewrite the famous 2015 opinion in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. In eleven incisive opinions, the authors offer the best constitutional arguments for and against the right to same-sex marriage and debate what Obergefell should mean for the future.

In addition to serving as Chief Justice of this imaginary court, Balkin provides a critical introduction to the case. He recounts the story of the gay rights litigation that led to Obergefell and explains how courts respond to political mobilizations for new rights claims. The social movement for gay rights and marriage equality is a powerful example of how, through legal imagination and political struggle, arguments once dismissed as "off-the-wall" can later become established in American constitutional law.

The authors of this hypothetical Supreme Court opinion offer a comprehensive and nuanced analysis of the constitutional issues surrounding same-sex marriage. They examine the historical and legal context of the case, as well as the social and political implications of the decision. They argue that the right to same-sex marriage is grounded in the fundamental principles of equality and liberty, and that it is consistent with the Constitution's guarantees of due process and equal protection under the law.

However, the authors also recognize that the decision has been controversial and has led to legal challenges and debates in other jurisdictions. They argue that the Supreme Court's decision should be interpreted narrowly to avoid unintended consequences and to respect the rights of religious organizations and individuals who oppose same-sex marriage.

Overall, this hypothetical Supreme Court opinion provides a valuable and thought-provoking exploration of the complex and evolving issue of same-sex marriage. It offers a robust defense of the right to same-sex marriage, while also acknowledging the challenges and complexities that the decision has created. It is a testament to the power of the legal system to shape the social and political landscape and to protect the rights of all individuals.

Weight: 650g
Dimension: 156 x 233 x 30 (mm)
ISBN-13: 9780300221558