On the ninth anniversary of the Obergefell v. Hodges decision, I am reminded of what the Constitution means to me — not necessarily of the brittle document that sits in the National Archives, but of the living and breathing reality of the law. I remember that day in 2015 when I was 10 years old: the summer heat and the adults discussing what the Supreme Court had just done.
I remember that feeling. The feeling of the law. When our Constitution comes to life and brings more of us in — this is what Obergefell reminds me of.
So too, though, am I made painstakingly aware that this day was almost a decade ago. And a lot has changed since then. Those who see the law as just words and not ideals being expounded now control our courts. I of course refer to the members of the originalist or textualist supermajority who sit on the Supreme Court today. These justices, of whom there are six, believe that our founding documents mean solely what they did at the time of ratification. That our laws are not ideals being worked out for an evolving people, but simply words.
Their view is misguided, and is far from the founders’ original intent for the document. Thomas Jefferson discussed extensively the need for the law to evolve. In 1789, he wrote a letter to James Madison regarding the Constitution, claiming, “The earth belongs always to the living.” And once again in 1816, he penned, “ … laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.”
Jefferson’s words encapsulate the essence of the founders’ mission to create not just a living Constitution, but a workable one. The notion that mid-20th century judges developed the theory of living constitutionalism is simply not grounded in reality. Its origins are in the framers who designed the Constitution as a flexible framework capable of evolving with society. The framers understood that they could not foresee every future challenge or societal change. Instead, they drafted a document grounded in broad principles like liberty, equality, and justice — principles that require interpretation in light of contemporary realities.
For the Constitution to endure, our application of these principles must change to reflect their modern meanings. If we cannot change the document within its framework, including through the longstanding practice of judicial interpretation, then there is no purpose in having a constitution that lasts through the centuries.
The Constitution, while a novel and ingenious blueprint for governance, initially not only fell short of protecting racial minorities and women, but woefully harmed them. When originally ratified, the document enshrined slavery and failed to offer women a voice in the democratic process. But through amendments, landmark rulings, and evolving interpretations, Americans have progressively expanded its promise of equality. The abolition of slavery, the institution of women’s suffrage, and the end of legal Jim Crow, as a result of the Civil Rights Movement, marked significant strides. Obergefell v. Hodges represents a continuation of the true history and traditions of this document, affirming the rights of more citizens.
The case, decided in 2015, cemented the right of same-sex couples to marry, recognizing marriage as a “fundamental right inherent in the liberty of the person.” Justice Anthony Kennedy’s majority opinion wove together the notions of dignity, autonomy, and equal protection under the law. He acknowledged that the Constitution’s guarantees must be understood in a dynamic context, not as static commands frozen in time. This living view of constitutional interpretation was demonstrated not just by the decision, but the people whose lives it impacted most. When the decision was announced, the steps of the Supreme Court were flooded with families and couples hugging, kissing, and crying. That day, American and rainbow flags flew side-by-side.
The impact of Obergefell on American society and the law has been profound. It has provided countless LGBTQ+ individuals with the legal recognition and protection they deserve, fostering greater social acceptance and legal equality. Since this decision, even Congress has responded to the growing acceptance of same-sex marriage by enshrining the practice into federal law through the bipartisan Respect for Marriage Act.
But the impact of the case extends beyond its practical implications; the decision affirmed the humanity and dignity of a marginalized group, embodying the Constitution’s promise of justice for all. Stories abound of couples who for the first time were fully recognized by their country and its laws, illustrating the personal and societal transformations that stem from such judicial recognition. And kids, like myself at the time, felt for the first time, in a real way, that their country’s legal framework included them too.
However, not everyone shared such sentiments that day. For Chief Justice John Roberts, Obergefell represented the triumph of popular will over the letter of the law. Aware of the growing support for marriage equality, Roberts used his dissent to lecture those who would celebrate the decision as a triumph of constitutional interpretation. Critiquing the majority’s legal reasoning, Roberts wrote, “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.” This biting dissent cuts to the core of originalist theory.
Originalists, like the dissenting justices in Obergefell, believe the Constitution should be interpreted as it was understood at the time of its writing. They argue that the framers did not intend for judges to create new rights, but to interpret existing ones based on historical context. To proponents of originalism, the decision in Obergefell overstepped judicial boundaries, imposing modern values onto an 18th century document. They maintain that societal changes should come through legislative processes or constitutional amendments, not through judicial reinterpretation. This is because they believe the judiciary’s job is not to expound new rights from the document, but solely to protect the ones enumerated in the plain text.
Yet, this history-centric plain text reading raises numerous challenges. A closer look reveals it to be anything but the straightforward jurisprudence many make it out to be. Where does a plain text reading locate the line between acceptable and “cruel and unusual” punishment, as defined by the Eighth Amendment? What does it teach us about how we should define “equal protection” in the Fourteenth? An originalist would most likely say to look to historical meanings and practices, but this does not lead to a clear answer either. Instead, what we will find is a diverse arrangement of meanings, differing by region and varying in practice. It is an unavoidable reality that value judgments play a role in interpreting the law, even for the originalist who critiques living constitutionalism for this very same reason.
Still, even if we take originalism at its highest ground and assume its practitioners are able to identify the correct historical interpretation of a constitutional provision, just because a conclusion is reached does not mean that conclusion is ideal. For instance, in the landmark 2008 gun-rights case District of Columbia v. Heller, the majority used history to argue that the Second Amendment protects an individual’s right to own a firearm for self-defense. Justice Scalia, who authored the majority opinion, referenced several dictionaries from the 1700s to support this finding. Some scholars and the dissenting justices argue that his historical analysis was shaky at best and that the conclusion of an individual right is ahistorical. But regardless of the past’s realities, does it make sense to rely solely on history to make these decisions?
Even if history provides a simple answer to a modern legal question — which it often does not — is it an answer we are willing to accept? As gun violence continues to soar in the 21st century, it is not feasible to apply history in such a way that effectively bars the government from addressing this crisis. Former Justice Stephen Breyer has said to his originalist colleagues that if we live under their strict jurisprudence “we will have a Constitution that no one wants.” It is not that a constitution needs to produce popular decisions, but at minimum, it should ensure a workable government that we can live under. Originalism hardly offers either.
To have a legal system that works, laws must be judged in the reality of the present with the underlying values of the text — not confined to a bygone era. Yes, history holds value and it should be used as one tool of many. But a judge is not a historian. And, as I would attest, the law belongs to the living. No theory of judicial interpretation is able to escape the necessity of value judgments, but if this must be the case, I would rather a judge apply the empirical evidence and values of the day than unearth the muddled values of the past.
Chief Justice Roberts is right to argue the founders never intended to extend the benefits of marriage to same-sex couples when they met in a stuffy Philadelphia Hall in the summer of ‘87 to set forth the fundamental laws of our nation. He is wrong when he contends that therefore the Constitution need not apply. His statement disregards the Constitution’s role as a document that incorporates more and more people into political and civil systems. It forgets that it is, above all else, a document, as Chief Justice John Marshall put it, “intended for ages to come, and consequently, to be adapted to the various crises of human affairs.” By reducing the Constitution to a static text, Roberts dismisses its foundational purpose to be a framework for justice. It is adaptable to the needs of our 21st century by not restricting us to the standards of 1787.
On this anniversary of Obergefell v. Hodges, we celebrate not just a legal victory, but a reaffirmation of the Constitution’s living nature. This decision exemplifies the judiciary’s capacity to interpret the Constitution in a way that expands its promise of liberty and equality to all citizens. It stands as a testament to a judiciary that honors the past by recognizing the realities of the present.
The legacy of Obergefell v. Hodges highlights the necessity of a living and working constitutional approach. It underscores the importance of judicial reasoning that reflects our evolving understanding of human dignity and justice. As we look ahead, let us champion a vision of the Constitution that is dynamic, inclusive, and true to its foundational ideals — one that continues to inspire and continues to protect. Let us push back against judges who say the document is “dead, dead, dead.” Let us hope for a Supreme Court that returns to the original intent of the founders, who saw the Constitution as one that evolves and celebrates decisions like Obergefell.
Senior U.S. Editor
