Supreme Court Justice Anthony Kennedy’s majority opinion in the landmark Obergefell v. Hodges marriage equality ruling prompted both praise and criticism on October 13 from a panel of Fordham Law professors discussing the case.
While all consider the ruling a significant landmark victory, many of the panel believed Kennedy’s analysis fell short. Kennedy erred when he framed his opinion in terms of substantive due process rather than equal protection, Professor Clare Huntington said, because it required him to weigh in on the social meaning of marriage rather than deciding the case on well-established equality principles. Further, by elevating the place of marriage in our society, Kennedy unnecessarily denigrated children born to unmarried parents—40 percent of children born today.
“I really don’t like this opinion,” Huntington said. “I’m delighted with the outcome but incredibly frustrated with the way Kennedy framed his opinion.”
Huntington and five other Fordham Law professors shared insights from their recently published Fordham Law Review articles on the promises and limitations of Kennedy’s opinion. The panel convened in honor of Constitution Day.
Kennedy’s sweeping statement about marriage’s societal import failed to take into account the massive inequality that traditionally made it more difficult for African-Americans to get married, Professor Robin Lenhardt said.
“To the extent Kennedy promotes marriage and his vision of democracy tied to marriage, he pushes African-Americans farther on the margins than we already are in many ways,” Lenhardt said.
Marriage has also historically been a source of “deep inequality for women,” added Catherine Powell. The opinion also celebrates the dignity of marriage over the dignity of the individual, whether in or out of marriage, gay or straight, she noted.
Doubts about Kennedy’s opinion aside, the magnitude of the Court’s ruling cannot be overstated, Professor Elizabeth Cooper said.
“To me, when I think of even the last 20 or 30 years and the changes that have occurred, they’re absolutely startling,” Cooper said.
Professors Joseph Landau and Ethan Leib also spoke during the event hosted by the Fordham Law Review.
–Ray Legendre