Equality or Liberty: an Examination of Obergefell v. Hodges

Abstract

The gay rights movement is perhaps the most rapidly progressing social and political movement of our generation. Within a mere sixty years, gay rights advocates arrived at the Supreme Court in pursuit of national recognition of same-sex marriage. Justice Kennedy, in his majority opinion in Obergefell, extended the right of marriage to same-sex couples through an argument founded in the rhetoric and structure of the civil rights cases Brown v. Board of Education and Plessy v. Ferguson. However, the use of these cases creates a substantial change in legal precedent for religious dissenters. Rather than relying on precedent involving the First Amendment (Hosanna Tabor v. EEOC and Hobby Lobby v. Burwell), cases involving religious dissent will be decided in light of precedent from the racial discrimination cases of the Civil Rights movement (Bob Jones v. United States). In light of this precedential shift, what does it mean to dissent from gay marriage in 2016? Does the equation of religious liberty with “Christian dissent from gay marriage” create a dangerous and narrow new definition of religious freedom? Finally, what do these unanswered questions mean for tolerance in the modern world?