Document Type

Article

Publication Title

Hastings Law Journal

Abstract

This Essay considers a Kennedy opinion that has been mentioned multiple times in the course of this symposium, Obergefell v. Hodges. Let me state at the outset that I have perhaps unorthodox views of Obergefell. Although it has been rightly heralded as one of the most important decisions of the last twenty years, in my view, it is also one of the most challenging. To be very clear, I fully support same-sex marriage and I appreciate that Obergefell extended the right to marry to include same-sex couples. But if winning cases is important, it is surely as important to win them in the right way. And on this point, Obergefell fails. To put it plainly, although Obergefell reaches the right outcome, it does so for the wrong reasons. We are only beginning to appreciate the full extent of Obergefell’s collateral consequences for those who live their intimate lives outside of marriage.

First Page

1263

Volume

70

Publication Date

2019

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