Garret Hartman

Dr. Dalecki

15 November 2017

Exam 3 Topic #1

Judicial Review In The Context Of Obergefell v. Hodges, 2015

In the past century, the Supreme Court of the United States has been no stranger to social

controversy and has become a profound figure in the transformation of public policy, despite its

role in the judicial branch of the federal government. Being less than half a decade in the past,

the Supreme Court case of Obergefell v. Hodges, 2015, has become one of the most significant

cases faced by the highest judges in the nation despite its recency, being cited by some as the

next Roe v. Wade. With such large implications, it is of great importance to evaluate what this

groundbreaking case means for the Supreme Court and its exercising of judicial activism or

judicial restraint, specifically in regard to a landmark case such as Obergefell v. Hodges, 2015.

To further understand the role of the Supreme Court in affecting public policy, it is

necessary to understand judicial activism and judicial restraint when considering how politically

active the Court should be. Judicial activism is the willingness of the Court to make significant

public policy changes. There are three main methods used to determine if a court is behaving in

an activist manner. Judicial activism is exhibited by the Court overturning acts of Congress, such

as federal laws, as well as overturning laws at the local and state level. Judicial activism can also

involve the Court overturning previously established “precedents” from cases in the past.

Activism may also include reinterpreting the Constitution to meet current societal needs, rather

than looking at the Constitution from an originalist view, from the perspective the Founders

would likely have interpreted the Constitution. On a partisan note, judicial activism is not
exclusive to, but mainly advocated for by liberal justices that believe in changing law when

deemed necessary for current American society and lifestyle.

On the contrary, judicial restraint is the willingness of the Court to hold itself back,

refraining from using its power and influence to make significant public policy changes. There

are also three methods to determine if the Court is exercising restraint when making decisions.

Restraint often involves deferring decisions to the legislative branch of government by upholding

and supporting the laws passed by Congress and state and local legislative bodies. Additionally,

restraint is shown when the court adheres to stare decisis, or the precedent established by cases

in the past. Lastly, restraint is shown when the Court interprets the Constitution from an

originalist view, withholding their ability to strike down laws unless it is strictly, specifically

unconstitutional. In regard to politics, judicial restraint is not exclusive to, but often advocated

for by more conservative justices in an attempt to preserve the continuity of law, leaving the

alteration and creation of law to the bodies of legislation, the institutions that represent the

people of the United States.

In the case of Obergefell v. Hodges, there are multiple compelling reasons to conclude

that the Court exercised judicial activism in the case’s outcome. First and foremost, prior to the

decision, in as recently as 2014, there were still fifteen states with constitutional bans on same-

sex marriage1. The Obergefell v. Hodges decision exemplifies activism here because the decision

actively determines that section of state law unconstitutional, nullifying their bans and forcing

their constitutions to change.

1
“Same-Sex Marriage, State by State,” Pew Research Center, June 26, 2015,
http://www.pewforum.org/2015/06/26/same-sex-marriage-state-by-state/
 Additionally, it can be argued that the five justices in the majority that effectively

legalized same-sex marriage did so by reinterpreting the Constitution. The major issues of this

case have to do with civil rights, pertaining mainly to the Fourteenth Amendment of the

Constitution, specifically Section One of the amendment, the Equal Protection Clause. This

Clause states, “No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”2 Before this case, it was understood that states alone made decisions to

recognize or refuse to recognize same-sex marriage. In reinterpreting the Constitution, the court

behaved in an activist manner by extending the Equal Protection Clause to protect the right of

same-sex couples to marry, ruling that it was unconstitutional for states to deny them the right to

marry.

However, while those are two premises for understanding the Court’s decision as judicial

activism, it can also be seen as an act of judicial restraint. As a controversial Justice throughout

the years, Justice Anthony Kennedy was the typically conservative Justice that decided the case

in favor of same-sex marriage, and he acted largely on what he understood to be precedent in

recent years. On page twenty of the official Opinion of the Court for Obergefell v. Hodges,

Justice Kennedy references the case of Loving v. Virginia, 1967, in citing precedence. In regard

to the Fourteenth Amendment, Kennedy elaborates about the cited case, “It stated: ‘There can be

no doubt that restricting the freedom to marry solely because of racial classifications violates the

central meaning of the Equal Protection Clause.’”3 Also, in the sake of upholding precedence,

2
“U.S. Const. amend. XIV, § 1”
3
Obergefell v. Hodges, 576 U.S. 20 (2015)
Kennedy cited Lawrence v. Texas, 2003, a Supreme Court case that invalidated the

criminalization of homosexual intimate relationships, also in regard to the Equal Protection

Clause. Kennedy explains on page fourteen of the Opinion of the Court, “while Lawrence

confirmed a dimension of freedom that allows individuals to engage in intimate association

without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a

step forward, but it does not achieve the full promise of liberty.”4 To some it may be simple to

argue that the Court behaved in an activist manner by legalizing same-sex marriage nationwide.

However, on the contrary, Kennedy notices the trend of expansion of gay rights in America,

nearing equality with the rights of heterosexual persons. Kennedy using examples of precedence

in the Opinion of the Court, and with this decision the Court finally grants same-sex couples

“equal dignity in the eyes of the law,”5 as if the Court were merely following through with the

recent trend of extending equality to the LGBT rights movement.

In light of recent events within the Supreme Court and the recency of Obergefell v.

Hodges, it is interesting to understand how the new Justice appointed by President Trump, Neil

Gorsuch, feels about the decision. In a recent testimony, Gorsuch stated, “American liberals have

become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and

the ballot box as the primary means of effecting their social agenda… It is the role of judges to

apply, not alter, the work of the people’s representatives… Ours is the job of interpreting the

Constitution. And that document isn’t some inkblot on which litigants may project their hopes

and dreams.”

4
Obergefell v. Hodges, 576 U.S. 14 (2015)
5
Obergefell v. Hodges, 576 U.S. 28 (2015)
 Based on this statement, it is safe to say that Gorsuch would likely have ruled the same

way as the Justice he replaced, Antonin Scalia, against legalization of same-sex marriage on the

principle that the matter is not for the courts to decide. Based on his statement, Gorsuch seems to

be in favor of judicial restraint, focusing on his role as a strict interpreter of the Constitution and

as a supporter of Congress and the continuity of law, rather than striking it down.

Whether one believes that Obergefell v. Hodges was a victory for judicial activism, or if

it was a victory for judicial activism, it is at the very least, a victory for the LGBT rights

movement and the rights of same-sex couples in the United States. However, it is of even greater

significance that Obergefell v. Hodges showcases evidence that, no matter how people feel about

the societal context of any given Supreme Court case, the Court has tremendous power and

influence within the nation, almost frighteningly so. Whether that is good or bad is a matter of

personal opinion, however, it is no small truth that the courts in America have a staggering

amount of power to shape American society as important public issues face the nation moving

forward.