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
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
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