1/21/2024 0 Comments Obergefell scotusAll three strands of Glucksberg have been picked apart by academics and critiqued by jurists, but nonetheless that case provided the standard for substantive due process for nearly two decades. Glucksberg, the Court has focused on three issues: first, the Court has said that to be protected the right must be grounded in tradition second, it has explained that the right must be defined with specificity, rather than analyzed at a more general level of abstraction and third, the Court implied a greater willingness to protect negative “freedom from” rights rather than positive “freedom to” rights. In its previous cases, and in particular its decision in Washington v. In defending that assertion, Yoshino walks the reader through the Supreme Court’s major substantive due process decisions of the last five decades. In his Comment on Obergefell for Harvard Law Review’s annual Supreme Court issue, Kenji Yoshino argues that Obergefell “is a game-changer for substantive due process jurisprudence” and thus will likely have an impact in areas far beyond same-sex marriage. But there has been lots of debate about whether the decision is significant for more than just its momentous holding that same-sex marriage is a constitutionally protected right. If Obergefell is overturned, there is no stopping SCOTUS from attacking the Griswold and Lawrence decisions along with it. Without changes made to our state constitution and laws, Texas will become a state that will not allow you to marry the person you truly love. Especially in Texas, it is crucial to vote and urge lawmakers to change their old mindsets, and protect the rights of same-sex couples to prevent us from living in a post-Obergefell world. Now living in a post-Roe era with midterm elections around the corner, everything is up in the air. Also, same-sex couples might be denied the rights to property, inheritance and adoption. A possibility would be that current same-sex marriages may be grandfathered in and bar people from entering into new same-sex marriages. Hodges was overturned? Unfortunately, no one knows. According to the 2022 Republican Party of Texas Platform, they reveal their old-fashioned views on marriage by stating marriage should be between a “natural man and a natural woman.” What would it mean if Obergefell v. Unless states change what is on their books, same-sex marriage would become illegal in at least 25 states, including Texas, if Obergefell were to be overturned. Prior to Obergefell, some states explicitly legalized same-sex marriage but most had some sort of ban in place, either through the state constitution and/or state law. Texas ruled that criminal punishment for sodomy between consenting adults was unconstitutional in 2003. Connecticut was a case that protects the right to contraceptives in 1965 and Lawrence v. In case those names sound unfamiliar to you: Griswold v. Wade, Justice Clarence Thomas said that SCOTUS, having now upended nearly 50 years of established abortion rights in the U.S., should also “reconsider” all of the Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell. In a concurring opinion to the Court’s overturning of Roe v. In the event the republican majority SCOTUS overturns the right to same-sex marriage, those state laws and constitutional amendments would possibly take effect. Hodges ruled all state laws prohibiting same-sex marriage were voided in 2015. In 2015, the United States Supreme Court (SCOTUS) legalized same-sex marriage, but the restrictions could return in most states if the court decides, as it did with abortion, that such marriage is not constitutionally protected.
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