Loveland, I. (2016). Liberty, Equality and the Right to Marry under the Fourteenth Amendment. British Journal of American Legal Studies, 2017,
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This paper analyses the recent decision of the US Supreme Court in Obergefell et al v Hodges, Director Ohio Department of Health et al (2015) 576 US ----. By a majority of 5-4, the Court held that the liberty and equal protection clauses of the Fourteenth Amendment, either singly or in combination, prevented a State from prohibiting marriage between adult spouses of the same sex. The four dissentients rooted their dissents in the accusation that the majority has improperly arrogated to the Court jurisdiction over a matter that should be left to be resolved through State political processes. This paper critiques both the majority and dissenting opinions, and suggests that while one might applaud the substantive conclusion the Court has reached, the reasoning offered by the majority suffers from several obvious weaknesses.
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