Similarities Between Judicial Activism And Strict Constructionism

In The Gay Marriage Case, Obergefell v Hodges, the United States Supreme Court decided that a state may not prohibit same-sex marriage. Instead, it emphasized that the fundamental right to marry is guaranteed to the gay society through the Due Process Clause of the 14th amendment of the United States of America Constitution. The involved decision maker in the case was Justice Anthony Kennedy, who gave four primary reasons for his decision.

The Supreme Court’s decision finalized the questions of whether states have the right to pass laws treating marriages differently based upon sex, and if states have to acknowledge the marriage of same-sex couples who were married in another state. On a 5-4 decision, the Court determined that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples because they cannot be treated differently than opposite sex couples. The court also determined that states have to recognize same-sex marriages the same way they do with opposite-sex. However, the Supreme Court did not create a law about same sex marriage, it just stated that

Instead of sticking to a strict constructivist approach, the court as a majority was willing to identify new rights in the constitution and agreed to hear cases on hotly debated social issues such as abortion, gay rights, affirmative action, and the death penalty, which conservatives thought should be decided by Congress and state

I join the opinion of the court in favor of Hodges and offer these accompanying thoughts. In order to determine if the state is required under the Fourteenth Amendment to license a marriage of same sex, we must establish a foundation in regards to marriage and its entitlements. The court argues that marriage “is not a fundamental right,” and with this conclusion, the state is not be required to legally recognize any marriage it does not see fit. Fundamental rights are due strict scrutiny, but issues of liberty interest only require rational basis. There is a significant difference between the two approaches with ‘rational basis’ only requiring that the law be related to a government interest. “Rational basis” review is generally used in cases where fundamental rights are of issue and is thus fitting for this case under these assumptions.” The constitution does not specifically list marriage as a fundamental right in the Bill of Rights or any of its additional amendments and thus leaves ample room for interpretation of is significance. The defense attempts to use the Fourteenth amendment in their defense as it asserts,

The concept of Judicial Review is to review cases using the power of the courts over the actions of the executive and legislative branches to deem them invalid or unconstitutional. The Supreme Court has a unique position because of its broad commitment to the American People and its Constitution. The Court's principles on judicial review are that The Constitution is the supreme law of the country, they have ultimate authority on constitutional matters, and they must vote against any law that clashes with the constitution. One of the most significant cases that brought forth such convictions was the case of Marbury vs. Madison in 1803. Which was a case that brought many complications because when Jefferson ordered his Secretary of State James

On June 26,2015, the Supreme Court sided that gay marriage is a right protected by the U.S. Constitution in all 50 states. Previously, to their decision, same sex marriage was already legal in 37 states and

In Obergefell v. Hodges, the Supreme Court successfully adopts the 14th amendment and applies both the Due Process Clause and the Equal Protection Clause to establish banning of same-sex marriages unconstitutional.

The judges based their decision on the principle of equality of all before the law. The 14th Amendment requires a state to celebrate a marriage between two persons of the same sex. According to US constitutional law, each US state has its own Constitution, but it is above all the US Federal Constitution. To date 37 of the 50 American states, as well as the District of Columbia, recognized gay marriage. Now, the 14 American states that still refuse to unite two persons of the same sex will not only have to marry

Obergefell v. Hodges was a case where quite a few same sex couples went to court because their state refused to acknowledge their marriage from other states. It was raised from lower courts to the supreme court because their rights kept being denied. When the supreme court looked at it the issue was if the 14th amendment can force states to recognize same sex marriages from other states. It was a five to four vote ruling that their marriages must be recognized due to the due process clause which states that states cannot arbitrarily withhold rights. The dissenting argument was that “while same-sex marriage might be good and fair policy, the Constitution does not address it, and therefore it is beyond the purview of the Court to decide whether states have to

The Supreme Court ruled in Obergerfell v. Hodges that States are required to grant a marriage license to same-sex couples and recognize the licenses of same-sex marriages from other states. In the oral arguments leading up to the June decision, the Obama’s Solicitor General, Donald Vierilli admitted before the Justices that religious institutions may lose their tax-exempt status if they continue to affirm that a marriage is between a man and a woman.

It is the only branch within our government that has “the ability to overrule the people’s elected representatives by declaring legislation or executive acts to be unconstitutional” (Hudson, 72). Essentially, it gives the judges the right to interpret the constitution and when laws are passed by federal and state legislatures that they feel violate the Constitution, they can strike them down using judicial review (Rosen). Although this has “long been criticized as an anti-democratic institution” because “it exercises control, not in behalf of the prevailing majority, but against it” (Rosen), it really is preserving democracy. It preserves the foundation of the Constitution, which represents the will of the people, “while the federal and state laws merely represented the will of the people's temporary and fallible representatives” (Rosen). For these reasons, it is important that the judges can therefore interpret the constitution without fear of retribution. The process of being unelected, having life tenure, the inability to be removed from bench and constant salaries allows “them to make unpopular decisions without fear of retribution either from those who appointed them or from the public at large”(Hudson, 71). These unpopular decisions that need to be made in order to protect our lives, property, and rights, not only sincerely looking out for the people, but also making us a

A group of gay couples sued their various relevant state agencies in the states of Ohio, Michigan, Kentucky and also in Tennessee. The lawsuits challenged the constitutionality of the bans perpetrated by the states on same-sex marriages or the states’ refusal for the recognition of such legal marriages that occurred within their jurisdictions. The plaintiffs in Obergefell v. Hodges argued that the statutes in their states violated the clause of equal protection. It also violated the clause of Due Protection of the fourteenth amendment. One of the plaintiffs brought an issue with the claims of civil rights. In all the circumstances, the trying courts found favour for the plaintiffs. However, the court of appeal for the 6th Circuit reversed the rulings and held that the ban on same-sex marriages by the states never violated the couples’ 14th amendment rights. The following article will, therefore, give a description and summary of the case Obergefell v. Hodges. It will give its current argument and later take a position so as to argue for one side of the case.

Same-sex couples in the states of Ohio, Kentucky, Tennessee, and Michigan challenged those states’ refusal to recognize same-sex marriage that occurred in other states that recognize same-sex marriage. The conflict between the states and same-sex couples brought up conflicts that were then taken to the court. The question of the Obergefell v. Hodges case was “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex” (“OBERGEFELL V. HODGES”). The second question of the Obergefell v. Hodges case was “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state” (“OBERGEFELL V. HODGES”). The most prominent issues that the case presented were that it violated the Equal Protection Clause of the Fourteenth Amendement and Due

Interpreting the Constitution as a living document allows the Court to give their opinion liberally on issues as society advances and changes with the times. A prime example of this exists within the two court cases of McCreary County v. ACLU of Kentucky and the Van Orden v. Perry case which help set precedent in interpreting the idea of the Establishment Clause ruling on government neutrality in establishing a state religion. Justice Breyer allowed for the Ten Commandments to be displayed in an Austin capitol building on the grounds because they represented a historical aspect along with other monuments that helped give two viewpoints, both religious and secular for government. The Austin capitol could keep the monument as a historical monument and one that helped guide some but not distinctly set how to govern or judge. This interpretation doesn’t necessarily fit the definition of neutrality that would traditionally used in an Originalist interpretation but fit for the individual situation and need in Texas which is one of the ideas and strengths with using more implicit interpretations.

Unlike the judicial restraint, the judicial activism takes on the opposing side and they believe beyond the written laws by the Framers. The Supreme Court Justices would mainly express their personal views besides the jurisdiction under the Constitution. Therefore,