Obergefell’s Squandered Potential
This essay critically assesses Justice Kennedy’s opinion in Obergefell v. Hodges, which declared unconstitutional state laws and constitutional provisions barring same-sex couples from lawfully marrying in the state or having their lawful out-of-state marriages recognized by the state. While acknowledging the important role that Justice Kennedy has played in advancing the cause of gay rights over the past two decades—through his authorship of four separate decisions vindicating the rights of gays and lesbians—the essay critiques Justice Kennedy for failing in any of these cases to declare sexual orientation a suspect or quasi-suspect classification under the Equal Protection Clause. The essay considers and rejects a number of possible justifications for his failing to reach the issue in any of the gay rights cases, and demonstrates how his failure to do so has caused harm to gay and lesbian litigants in the past that is likely to recur in the future. While acknowledging Justice Kennedy’s important contributions to the field of gay rights, the essay concludes that he could have left a more stable and enduring legacy had he followed a different pathway in Obergefell.