Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015 Page: 76
167 p.View a full description of this periodical.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
Texas Review of Law & Politics
other way around."367 Another disturbing belief is that "[t]he
Constitution stands for the proposition that some rights aren't left
to the whims of a democratic majority."368 This implies that it is
preferable to place those cherished rights in the hands of five
judges and their whims. This cannot be the ideal the Founding
Fathers intended for our Nation.
Arguably, a right to same-sex marriage is not a fundamental right
and liberty. Instead, a right to same-sex marriage is a new right. 369
As Justice Alito noted:
What Windsor and the United States seek, therefore, is not the
protection of a deeply rooted right but the recognition of a very
new right, and they seek this innovation not from a legislative
body elected by the people, but from unelected judges. Faced
with. such a request, judges have cause for both caution and
humility.370
The Supreme Court did not, however, exercise caution and
humility in deciding the Hollingsworth and Windsor cases. Similarly,
many federal district courts and some federal circuit courts
abandoned caution and humility in overturning state constitutional
provisions prohibiting same-sex marriages. And, the Supreme
Court completed the circle in Obergefell by granting same-sex
couples the right to marry. In short, the federal judiciary failed to
give respect to the democratic majority's views.37
According to the Obergefell majority, it did not matter whether
advocates of same-sex marriage had momentum in the democratic
process.372 This is a curious position since recognizing a new
constitutional right requires judges to consider, among other
things, "the public acceptability of a decision recognizing the new
367. Hollingsworth v. Perry, 133 S. Ct. 2652, 2675 (2013) (Kennedy, J., dissenting)
(emphasis added).
368. Wydra, supra note 365, at 114.
369. See Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should
Decide?, 95 MICH. L. REV. 1578, 1585 (1997).
370. United States v. Windsor, 133 S. Ct. 2675, 2715 (2013) (Alito, J., dissenting).
371. Posner, supra note 369, at 1586 (observing that some landmark Supreme Court
decisions implicating individual rights respected the democratic majority, including Brown v.
Board of Education, 347 U.S. 483 (1954), which "buck[ed] a regional majority but a national
minority"; Loving v. Virginia, 388 U.S. 1 (1967), which was handed down when "only a
minority of states had [laws forbidding racially mixed marriages] on their books"; and
Griswold v. Connecticut, 381 U.S. 479 (1965), which was decided "[o]nly when all but two
states had repealed their laws forbidding the use of contraceptives even by married couples."
And, the Court "created a right of abortion against a background of a rapid increase in the
number of lawful abortions.").
372. Obergefell v. Hodges, 135 S. Ct. 2584, 2606 (2015).76
Vol. 20
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Periodical.
University of Texas at Austin. School of Law. Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015, periodical, September 2015; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth839390/m1/90/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.