Same-sex marriage in America : Principles and Traditions or Judicial Policymaking?


The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry…In reality, however, the majority’s ap­proach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking…”

This was Chief Justice John Roberts’ damning indictment of the majority opinion in the recent US Supreme Court case of Obergefell v Hodges, a decision which legalized same-sex marriage across the United States. Whilst many commentators have endorsed the position that the judgment represents a usurpation of the people’s democratic freedoms and an attempt to legislate from the bench, others have defended the judgment as a simple extension of the liberties contained within the Constitution and recognized in the Court’s jurisprudence. This article aims to examine those arguments in order to determine how the landmark Obergefell decision should correctly be characterized.


This case was brought by a number of same-sex couples against the States of Michigan, Kentucky, Ohio and Tennessee. All of these states legally defined marriage as a union between one man and one woman and the Claimants argued that these laws violated their fundamental rights under the 14th amendment to the United States Constitution. The specific provisions of the 14th amendment in question were the ‘Due Process’ and ‘Equal Protection’ clauses which, taken together, prohibit any State from denying to any person life, liberty or property without due process of law and forbid any State from refusing to afford anyone equal protection under its laws. The Claimant’s arguments were that by refusing to allow them to marry and/or refusing to recognize their same-sex marriages, the laws of the States in question impinged on the fundamental liberties inherent in the 14th amendment and resulted in an unacceptable disparity in treatment between themselves and same-sex couples. After losing their case in the Court of Appeals the Claimants appealed to the Supreme Court who decided to hear their cases.

The central questions for the Court were:

  • Whether the 14th amendment requires a State to licence a marriage by two people of the same sex.
  • Whether the 14th amendment requires a State to recognize a same-sex marriage performed in another State.


In a 5 to 4 majority the Court answered both of these questions in the affirmative and based its reasoning on what it held to be four ‘principles and traditions’ which demonstrated not only that marriage is a fundamental right under the US constitution, but that it is a right which same-sex couples can also claim to have the benefit of:

  1. A person’s choice about who they choose to marry forms part of their individual autonomy which is a recognized right under the Constitution.
  2. The right to what the Court termed ‘intimate association’ through marriage is one which everybody enjoys.
  3. Marriage safeguards children and families by affording relationships legal stability and protection.
  4. Marriage is central to the Nation’s social and legal order.

After identifying these key principles and traditions the Court then explained that the right to marry on equal terms as opposite sex couples was also a matter of ensuring that all people were afforded the same treatment under the laws and thus engaged the equal protection clause of the 14th amendment also.

The Court then pointed out that although the legislature is often the most appropriate medium for change, people do not have to await the result of legislative action before they assert their fundamental rights and as the right to same to sex marriage was one which the Court now agreed was fundamental, legislative action (or inaction) could no longer prove conclusive. Furthermore, as the right to marriage was recognized as a fundamental right of every person no matter where they reside, the Court also concluded that States must recognize marriages performed outside of their own jurisdictions also.


The central argument of the dissenters in this case stems from what they see as the Court’s impingement on the democratic will of the people. Judges, they argue, are appointed to rule on what the law is, not what it should be and as no constitutional right to gay marriage was ever created by those who ratified the Constitution, it is an issue that should properly be left to State legislatures to decide.

Whilst this argument may initially appear to have some appeal, it is infact the product of an extremely rigid and narrow understanding of the American Constitution and of the judge’s role to interpret it. Far from attempting to usurp the people’s freedoms through inventing the law, the majority instead used their judicial powers of interpretation to give a broad meaning to the conception of ‘liberty’ and thus give recognition to a right which homosexuals had long been denied. Whilst some may equate this with judicial ‘policymaking’ the Courts decision to give recognition to fundamental rights fits perfectly with the notion of the Constitution as a ‘living document’ which was designed to and is capable of changing and adapting with time.

It is important to note that this is not a novel development in the Court’s jurisprudence and the 14th amendment has been used as a basis for the recognition of several fundamental rights throughout America’s history. This was the case in the landmark judgment of Loving v Virginia (1967), which recognized the right of all people to marry regardless of race and was also the case in Roe v Wade (1973), where the Court broadly construed the concept of liberty to include a woman’s right to have an abortion. These judgments clearly demonstrate that as well as looking to the original intent of constitutional provisions, it has been the Court’s tradition to consider how constitutional rights should be interpreted in a contemporary context in order to discern how best to preserve their spirit and essence.

Whilst the Courts are obliged to have respect for the legislative process, it would be inconsistent with the Court’s role to simply defer to State legislatures in every case where a constitutional provision does not specifically mention the right in question. If this were the rule the Courts were to follow, many of the racially oppressive ‘Jim Crow’ laws approved by hostile majorities after the Civil War could still very well be in force today; and States keen to deny women certain fundamental rights in relation to their own bodies may still have licence to do so – solely on the basis that these rights are not specifically mentioned in the Constitution.

As Justice Kennedy points out in the majority opinion ‘The dynamic of [the] constitution is that individuals need not await legislative action before asserting a fundamental right’ and this case the Court did exactly what it is tasked to do – interpret provisions of the Constitution in order to determine whether fundamental rights have been violated. The fact that certain States are now obliged to alter their laws is the perceived and rightful corollary once it has been established that a fundamental right has been violated.

It seems therefore that the Court very much adhered to its ‘principles and traditions’ in the Obergefell decision. It grounded the right to same-sex marriage firmly in its case-law and whilst it interpreted the concept of liberty broadly, interpretation is part of the Court’s task and cannot be said undermine the people’s democratic will. As a result claims of ‘judicial policymaking’ should be rejected.


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