The Use and Abuse of Definitions in Constitutional Law; A Critique of Justice Roberts's Dissent in Obergefell v. Hodges

Vienna Journal on International Constitutional Law 9 (2015)

5 Pages Posted: 21 Sep 2015 Last revised: 20 Jul 2021

See all articles by Alec D. Walen

Alec D. Walen

Rutgers School of Law; Rutgers, The State University of New Jersey - Department of Philosophy

Date Written: September 19, 2015

Abstract

Justice Roberts’s dissent in the Obergefell v. Hodges -- the case in which the Supreme Court found a constitutional right for same sex couples to marry -- rested on a faulty premise. The premise was that it is up to states, not the Court, to change the "definition of marriage" by extending it to same sex couples. He had no objection to recognizing that marriage is a fundamental right in constitutional law. His objection was that same sex couples cannot marry under most legal definitions of marriage, and that the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of “person” throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.

Keywords: same sex marriage, constitutional law, definitions of concepts

Suggested Citation

Walen, Alec D. and Walen, Alec D., The Use and Abuse of Definitions in Constitutional Law; A Critique of Justice Roberts's Dissent in Obergefell v. Hodges (September 19, 2015). Vienna Journal on International Constitutional Law 9 (2015), Available at SSRN: https://ssrn.com/abstract=2662945

Alec D. Walen (Contact Author)

Rutgers, The State University of New Jersey - Department of Philosophy ( email )

106 Somerset St
5th Floor
New Brunswick, NJ 08901
United States

Rutgers School of Law ( email )

217 North 5th Street
Camden, NJ 08102
United States

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