Cayetana Silva

Prof. Patterson

Law, Business & Society, Fall 2015

October 9, 2015

 

Written Assignment # 1 – Obergefell v. Hodges

 

You are a recent law school graduate and work for a community LGBT organization in the State of North Carolina. The June 26-decision Obergefell v Hodges invalidated provisions of the North Carolina constitution that prohibited same-sex marriage. The state public television network has asked the organization’s founder and president, David Mitchell, to appear on a program where a panel will discuss Obergefell. David has asked for your help in preparing for the program David wants to understand the basis of the majority opinion and whether the arguments of the dissenting opinions are valid.

 

Specifically, David wants you to answer the following questions:

 

1.      The majority opinion concludes that “the right to marry is fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses… couples of the same-sex may not be deprived of that right and liberty.” What are the chief criticisms that Chief Justice Roberts’ dissent makes of the conclusion that the right to marry is a fundamental right?

2.      Do you agree with the majority or with Justice Roberts on whether the right to marry is a fundamental right, and why? (Definition of “marriage” is part of Robert’s analysis of whether the right to marry is a fundamental right and is also part of the majority opinion, so you have to get into what the word “marriage” means)

3.      Justice Thomas’s dissent states his view that substantive due process is wrong. He also says that, even if were “defensible”, “the concept of ‘liberty’ [that the majority opinion] conjures up bears no resemblance to any plausible meaning of the word as it is used in the Due Process Clauses.” What is Justice Thomas’s view of the meaning of “liberty” as used in the Due Process Clauses?

4.      Analyze whether under Justice Thomas’s view of “liberty,” the Supreme Court was justified in used the Due Process Clauses in striking down Virginia’s ban on inter-racial marriage in loving v Virginia, 388 U.S 1 (1967)

5.      What do you think is the primary point that Justice Scalia is making in his dissent?