Bench Memos

The Near-Infinite Malleability of Obergefell

After the Supreme Court’s same-sex marriage decision in Obergefell v. Hodges was handed down, even commentators supportive of the result complained about the decision’s vague legal reasoning. So I did a little thought experiment: How much of the language from the Obergefell decision could be used verbatim to support the recognition of other fundamental rights to government benefits, such as unconditional welfare benefits? Remarkably few changes were necessary.

Here’s a link to a little not-so-tongue-in-cheek piece introducing the thought experiment, followed by its results: The Near-Infinite Malleability of the Supreme Court’s Obergefell Decision.

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