Recently, the US Supreme Court handed down its decision in Obergefell v Hodges, deciding by the predictably narrowest majority of 5-4 that same-sex couples had a constitutional right to marry, and that the right is protected under both the due process and equal protection clauses.
Eleven of the 50 states, as well as the District of Columbia, had already legislated to recognise the right of same-sex couples to marry. Justice Scalia in dissent observed, 'Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views.'
There is much about the judicial reasoning in the case that would raise eyebrows among lawyers not used to the judicial activism of the liberal majority of the US Supreme Court which has long viewed the due process and equal protection clauses as a vehicle for legislating their preferred view on contested political and social issues. Writing for the five liberal judges, Justice Kennedy used poetic, but not very judicial, language when he commenced his judgment with this stirring call to judicial arms: 'The Constitution promises liberty to all within its reach.’