Supreme Court Declines to Revisit Obergefell & Gay Marriage

It was no surprise this morning when the Supreme Court turned away a petition that asked, as one part of a case, to overturn its same-sex marriage decision in Obergefell v. Hodges. Or at least, it was only a surprise if you were reading breathless coverage driven by progressive activists in the media.

There are two potential arguments for taking a case to consider overturning Obergefell, and they are serious ones. One is that the decision itself is legally nonsensical, undemocratic, and should never have come out the way it did. Without rehashing all of those arguments here — see here, here, here, here, here, here, and here for a sampling of my writings on the topic — the 5–4 decision (with the cautious Chief Justice John Roberts in scathing dissent, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) barely even pretended to have anything to do with the text of the Constitution, let alone how that text was understood by the American people when they ratified the 14th Amendment in 1868. The decision was grounded in the due process clause of the 14th Amendment, yet rather than take seriously the Washington v. Glucksberg test, asking whether same-sex marriage was deeply rooted in our history and tradition, it simply found that marriage was so rooted, and then redefined marriage away from those very roots. As a matter of constitutional hygiene, the Court ought not to just let a passing five-vote majority throw out the fruits of years of democracy — including multiple statewide referenda passed by large majorities within the decade before Obergefell — without any substantial basis in the Constitution or any honest effort to situate the decision within precedent.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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It was no surprise this morning when the Supreme Court turned away a petition that asked, as one part of a case, to overturn its same-sex marriage decision in Obergefell v. Hodges. Or at least, it was only a surprise if you were reading breathless coverage driven by progressive activists in the media.

There are two potential arguments for taking a case to consider overturning Obergefell, and they are serious ones. One is that the decision itself is legally nonsensical, undemocratic, and should never have come out the way it did. Without rehashing all of those arguments here — see here, here, here, here, here, here, and here for a sampling of my writings on the topic — the 5–4 decision (with the cautious Chief Justice John Roberts in scathing dissent, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) barely even pretended to have anything to do with the text of the Constitution, let alone how that text was understood by the American people when they ratified the 14th Amendment in 1868. The decision was grounded in the due process clause of the 14th Amendment, yet rather than take seriously the Washington v. Glucksberg test, asking whether same-sex marriage was deeply rooted in our history and tradition, it simply found that marriage was so rooted, and then redefined marriage away from those very roots. As a matter of constitutional hygiene, the Court ought not to just let a passing five-vote majority throw out the fruits of years of democracy — including multiple statewide referenda passed by large majorities within the decade before Obergefell — without any substantial basis in the Constitution or any honest effort to situate the decision within precedent.