Abstract
Much has been written about Obergefell v. Hodges, holding that
same-sex marriage is protected by the Fourteenth Amendment. Virtually
all commentators view the decision as an example of an increasingly
polarized Supreme Court.
This article challenges that characterization by analyzing Kennedy’s
majority opinion and Roberts’ dissent in Obergefell in light of the legal
theories of H. L. A. Hart and Lon Fuller. The article argues that, from a
legal theory perspective, Kennedy and Roberts exhibit numerous, often
surprising commonalities. In addition, Kennedy’s arguments seem to
accurately reflect the methodology he explicitly endorses. Roberts, in
contrast, seems to exaggerate his originalist commitment to the
Constitution because he relies on public policy assumptions that he fails to
recognize or defend. I conclude that Kennedy’s substantive due process
approach is constrained by explicit Court precedents, rather than being
open-ended or idiosyncratic, and that Roberts relies in key respects upon
public policy, which is obscured by his claim of originalism and his focus
on the separation of powers.
The legal theory analysis thus reveals a more penetrating, yet more
moderating, theoretical framework within which to discuss disagreements
about individual rights, especially evolving claims to previously
unrecognized rights, than is possible based upon constitutional theory
alone.
Keywords
Obergefell, Hart, Fuller, Kennedy, purposivism, judicial restraint