Implications of the Supreme Court’s nationwide legalization of same-sex marriage

This summer, the Supreme Court of the United States ruled in a 5-4 decision that the Constitution protects a right to same-sex marriage.  As a result of the landmark decision, Obergefell v. Hodges granted same-sex couples the right to marry in all 50 states, including the 13 states that continued to define marriage, through legislation, as the union of one man and one woman.  Justice Anthony Kennedy authored the opinion of the Court, and Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts each wrote dissenting opinions.

In his majority opinion, Kennedy explained the significance of marriage as a societal institution and the importance of state recognition of this type of bond for all people, including same-sex couples.

The dissenting opinions claimed that the Constitution affords no such right, and they argued that the Court overstepped its bounds in expanding the definition of marriage.

Professor of Political Science Sotirios Barber told the Rover that Kennedy’s logic was consistent with previous cases on civil rights.

“Justice Kennedy’s opinion was in line with established precedents regarding personal liberties and equal protection of the law,” he said.  “The opinion was also consistent with a tradition of judicial responsibility which judges of all political stripes have freely joined when the rights they favored were at stake.”

Barber criticized the dissenters for viewing the decision as a radical departure from tradition, arguing that in this case the Court did uphold certain traditions.

“Even if you see Obergefell as abandoning one tradition, it does so in favor of other traditions, namely, traditions regarding judicial duty in a constitutional regime and the reasonableness and fairness of constitutional laws,” Barber added.

Barber also argued that this decision conforms to traditional moral assumptions.  “The moral skepticism of the dissenting justices should also offend those who believe that the American founding fathers were genuine patriots who were interested more in doing the right thing than imposing their unreflective preferences on their posterity,” he continued.

Matthew Hall, Associate Professor of Political Science, observed that the Court’s argument using the due process clause of the Fourteenth Amendment relied strongly on precedent.

“These precedents include several sweeping propositions, which firmly assert that the Fourteenth Amendment protects the right to marry as a fundamental intimate choice, beyond the realm of legitimate state interference, and that right cannot be conditioned on the capacity to procreate. Accordingly, the Court’s jurisprudential arguments with respect to due process enjoy substantial precedential support,” he told the Rover.

On the other hand, Hall was less convinced by the argument from the Equal Protection Clause.

“Somewhat surprisingly, the majority opinion completely eschews the Court’s extensive line of precedents establishing different tiers of scrutiny for equal protection analysis,” Hall said.  “As a result, the opinion fails to grapple with the central dilemmas of equal protection jurisprudence as it applies to same-sex marriage bans.  How these dilemmas might be resolved, I cannot say.”

Many have argued the decision is a threat to the religious liberty of individuals who hold view of marriage as a union between a man and a woman.

“The challenges will not come in the form of requirements that, say, religious ministers officiate at weddings.  They will come, instead, in the areas of licensing, accreditation, conditions on public funding, public employment and education, and access to public property and forums,” Richard Garnett, Professor of Law, told the Rover.

“It is very unlikely, in other words, that governments will try to require a minister to perform a wedding ceremony against his or her wishes but it is likely that some governments will condition public funds and contracts on the adoption by faith-based agencies and institutions of certain nondiscrimination policies,” Garnett continued.  “It remains to be seen how these and other cases and challenges will be addressed and resolved.”

As a Catholic institution that upholds the traditional view of marriage, Notre Dame could be affected by the implications of this case.

The official student group PrismND provides resources to the LGBTQ community in light of Catholic teaching.  When asked how this decision will affect PrismND’s ability to carry out its pastoral mission, the group declined to comment, saying that it does not take a stand on political issues.

However, PrismND has been vocal about the issue via social media.  When the ruling was handed down on June 26, the group’s Facebook page quoted part of the decision, posted an article about the decision featuring two women kissing, and commented on the historicity of the day.

When South Bend’s Mayor Pete Buttigieg came out as homosexual and proclaimed his support for marriage rights for homosexual couples in a letter appearing in the South Bend Tribune, PrismND commented positively on his courageous decision on its Facebook page.

Finally, when Justice Sonia Sotomayor’s visit to campus was announced, PrismND advertised the event by noting that she was one of the justices who legalized marriage equality.

Notre Dame spokesperson Dennis Brown declined to comment on how the university will defend its understanding of marriage in light of the recent decision.

Hailey Vrdolyak is a senior political science and theology major living in a modified closet in Pangborn Hall.  Contact her at