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07/03/2015

Michael Perry: Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment
Michael Ramsey

Michael J. Perry (Emory University School of Law) has posted Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment on SSRN.  Here is the abstract:      

In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?

This brief paper is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.

I found the first part of the paper (rejecting the equal protection argument) especially interesting because, as I've argued previously, I think the equal protection argument is the only plausible textualist/originalist route to requiring states to recognize same-sex marriage.  But Professor Perry's contrary argument is pretty persuasive.  (And I won't add any spoiler about what he thinks is the better argument).