A roundup of one court opinion and three essays relating to the same-sex marriage decision in Obergefell v. Hodges by SCOTUS.
Decisions
Bumgardner v. Bumgarner (Tennessee Chancery Court Hamilton County, Aug. 31, 2015)
With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee’ s judiciary must now await the decision of the U. S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage. The majority’ s opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land…
Thus, it appears there may now be, at minimum … concurrent jurisdiction between the state and federal courts with regard to marriage/divorce litigation. Perhaps even more troubling, however, is that there may also now be a new or enhanced field of jurisprudence— federal preemption by ” judicial fiat.” …
[R]egardless of the states’ traditional regulation of the area of marriage and divorce…, what actually appears to be the intent and ( more importantly) the effect of the Supreme Court ruling is to preempt state courts from addressing marriage/ divorce litigation altogether…
The conclusion reached by this Court is that Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/ central institutions such as marriage and, thereby, at minimum, contested divorces. Consequently, since only our federal courts are wise enough to address the issues of marriage— and therefore contested divorces— it only follows that this Court’ s jurisdiction has been preempted…
Articles and Essays
Lynne Marie Kohm, The Unspoken Consequences of Obergefell: Calling Convictional Christian Scholars. Regent University School of Law. September 15, 2015.
This short essay offers a critical view of the decision in Obergefell v. Hodges and the marriage debate more generally, considering philosophical, academic, and spiritual positions of the legal scholar of faith in light of the jurisprudence of Obergefell. The unspoken consequences of this ruling compels state and individual submission to a doctrine that, according to Justice Anthony Kennedy, overthrows millennia of law and culture. Yet, what should be the response of a man or woman of faith who has published as an advocate of conjugal marriage, and who must now teach law students these postmodern principles as legal reality? Using messages from C.S. Lewis’s lectures to war torn Europe, this essay challenges both the scholar of faith and the postmodern academy.
Kari E. Hong, Obergefell’s Sword: The Liberal State Interest in Marriage. University of Illinois Law Review, Forthcoming.
Abstract. Up until Obergefell v. Hodges, pro-marriage ideology was used to justify homophobic laws and the entrenched sexism of traditional marriages. Now that marriage equality is the law of the land, there is room for a new conversation over the meaning of marriage. Specifically, this essay argues that the proponents of traditional marriage were correct in asserting that the institution of marriage has benefits — intangible and tangible — that no other relationship currently provides to its members. Put another way, although those who defended traditional marriage were wrong with respect to their agenda, what if they in fact were absolutely right in that the marital relationship can provide something quite distinct and of great societal value?
After analyzing this proposition, this essay proposes a rethinking of the privacy doctrine. What if the right to be let alone — the prior means by which the citizen is best protected by the State — is in fact more harmful than helpful? This essay explores specific situations where the new state interest in the dignity of marriage paves the way for state intervention as a welcomed and needed benefit of marriage.
Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons From Mrs. Murphy for Same-Sex Marriage and LGBT Rights. 95 Boston University Law Review 951-993 (2015).
Introduction. “Until the U.S. Supreme Court’s denial of certiorari on October 6, 2014, which made same-sex marriage decisions in three federal Circuit Courts of Appeal authoritative, the voluntary embrace of same-sex marriage by state legislatures and voters accounted for marriage equality in more than half of the U.S. jurisdictions that recognized same-sex marriage. That voluntary embrace hinged on compromise. Same-sex marriage opponents traded the right to marry in exchange for meaningful religious liberty protections for those who adhere to a traditional view of marriage.
“Compromise brought the protections of marriage to same-sex couples before marriage equality otherwise would have been democratically adopted. For opponents, compromise delivered modest, but important, protections, allowing religious organizations and individuals to refuse to facilitate the celebration or solemnization of marriages that conflict with their religious tenets without fear of lawsuit or loss of government benefits.
“Many will assume that the decisive shift in marriage recognition to the federal courts moots all discussion of bargaining. Not so…”