Elon Law Professor Enrique Armijo says U.S. Supreme Court’s same-sex marriage ruling means “the right to marry the person you love can no longer be made to wait for the time it takes for the voters to debate and approve.”
Elon Law Professor Enrique Armijo
statement on U.S. Supreme Court Obergefell v. Hodges decision
“Today, the U.S. Supreme Court decided that the federal constitution bars states from banning same-sex marriage. In a 5-4 decision written by Justice Kennedy, the author of several prior Court opinions affirming equal rights for same-sex couples, the Court held that because marriage is a fundamental right, bans on that right, whether imposed by state statute or constitutional amendment, violate the Due Process Clause of the Constitution’s 14th Amendment, which grants people the right to marry the person of their choice irrespective of gender. Those bans also violate that same Amendment’s Equal Protection Clause, which guarantees that all individuals be treated equally under the law. The Court also held that states must recognize same-sex marriages performed in other states.
“The Obergefell decision preserves the status quo in over two dozen states where same-sex marriage was already legal, including here in North Carolina, where in October 2014, a federal court, following the U.S. Court of Appeals for the Fourth Circuit in Richmond, found that North Carolina’s Amendment One violated the U.S. Constitution. In future cases, courts will now need to decide lots of interesting follow-on questions, such as the constitutionality of the North Carolina Legislature’s recent law permitting the state’s magistrates to refuse to perform same-sex marriages for religious reasons.
“The four dissenting justices each wrote separately to take issue with the majority’s decision. Chief Justice Roberts argued that the political process, not the judiciary, should decide whether to expand marriage beyond its long-standing definition of a union between two people of opposite sexes. And agree with it or not, Justice Scalia’s dissent, which sets out his view of the decision’s implications for democratic self-rule, is an all-timer. In the same way that my students read and argue about Scalia’s dissents in abortion rights cases from 25 years ago, the Scalia dissent in Obergefell will be debated in law schools for decades, regardless of how settled the right to same-sex marriage has become. Scalia has often said that he writes his dissents not for the present, but for the future; namely law students, the next generation’s judges, leaders, and legislators. Unfortunately for him, on this issue, Justice Scalia, his three fellow dissenters, and the opponents of same-sex marriage were all on the wrong side of history. The Court said today that the right to marry the person you love can no longer be made to wait for the time it takes for the voters to debate and approve.”
Enrique Armijo, assistant professor of law at Elon University School of Law, is an an affiliate fellow of the Yale Law School Information Society Project. He teaches and researches in the areas of the First Amendment, constitutional law, torts, administrative law, media and internet law, and international freedom of expression. Prior to joining Elon Law, Armijo practiced with Covington & Burling LLP in Washington, D.C., where he advised journalists, news organizations and trade associations on media law-related issues. As an appellate lawyer, Armijo briefed cases in the U.S. Supreme Court and briefed or argued cases in the federal and state courts of appeal. He earned a B.A. from the University of Florida, an M.A. from the University of North Carolina at Chapel Hill and a J.D. from the University of North Carolina where he was Editor-in-Chief of the North Carolina Law Review.
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