Judicial Overreach and Reasonable Accommodation: Some British Reflection on the US Supreme Court Decision in Obergefell v. Hodges


Professor Mark Hill QC is an adjunct professor at Cardiff University, Pretoria University, Notre Dame University Law School, Sydney and King’s College, London; and is a fellow at the Center for the Study of Law and Religion at Emory University, Atlanta. He practices at the Bar in London and sits as a judge on the Midland Circuit.

The hallmark of good judgments is their brevity. Short sentences promote clarity. The best sentence in Obergefell v. Hodges is written by Chief Justice Roberts. It comprises seven words: “But this Court is not a legislature.” Unfortunately Roberts’s was a dissenting opinion. By a majority of 5:4, the US Supreme Court effectively legislated to permit gay marriage. I am not opposed to same-sex marriage. On the contrary, I am a champion of LGBT+ rights. Nor am I opposed to judicial activism. The common law is the better for the occasional gentle nudge. My unease, viewed from the UK, is with the starkness of the outcome and its failure to accommodate religious sensibilities. As Justice Scalia remarks in his barnstorming dissent,[1] the consequence of the decision was that the people of America lost “the freedom to govern themselves.” (more…)

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Postmodern Marriages for Postmodern Times: The Obergefell Case and the Strasbourg Court’s Jurisprudence


Dr. Eugenia Relaño Pastor is a Senior Research Fellow in the Department of Law and Anthropology at the Max Planck Institute for Social Anthropology, Halle (Germany).

 

“When the heart speaks, the mind finds indecent to object.”
(Milan Kundera, The Unbearable Lightness of Being)

 The exclusion of same-sex couples from the right to marry remains a reality in some EU Member States.[1] But increasing recognition of same-sex marriage and/or same-sex registered partnerships by European legislatures as well as national and supranational courts shows a step forward for the rights of same-sex couples.[2]

The United States and Europe have faced a similar divergence of public opinion and judicial decisions regarding same-sex marriage, so similar in fact that the European Court of Human Rights (ECtHR), frequently referred to as the Strasbourg Court, in Oliari and Others v. Italy devoted substantial attention to the Supreme Court of the United States (SCOTUS) opinion in Obergefell v. Hodges. In Oliari, the Strasbourg Court specifically highlighted the following SCOTUS points: (more…)

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Human Dignity, SOGI Claims, and the Obergefell Decision


Christine M. Venter is a Teaching Professor at Notre Dame Law School and Affiliated Faculty in Gender Studies at the University of Notre Dame.

It has now been five years since Obergefell, but one thing that even many opponents of the decision on religious freedom grounds might find common ground with, is the language used by Justice Kennedy when referring to the LGBTI+ community. In his opinion, Kennedy focused on the human dignity of the individual and what is required for dignity and full recognition of personhood. Obergefell represents the culmination of the Court’s gay and lesbian rights cases in that regard; previously Lawrence v. Texas, and United States v. Windsor, both established the idea of the centrality of the dignity of the human person. Lawrence mentioned it three times, while Windsor and Obergefell both referred to it ten times. (more…)

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