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The legitimacy of recent judgments in the Supreme Court, lower federal courts and State courts which have extended the scope of the Due Process and/or Equal Protection clauses of the Fourteenth Amendment has been a fiercely contested controversy in legal and political circles in the USA. The controversy has been especially sharp in relation to the question of same sex marriage, and specifically whether it is within State competence to refuse to allow same sex couples to marry under State law. This paper explores that legitimation controversy through a multi-contextual analysis of the Supreme Court’s starkly divided judgment in Obergefell v Hodges (2015), in which a bare majority of the Court concluded that a State ban on same sex marriage was incompatible with the Due Process clause of the Fourteenth Amendment. This paper critiques both the majority and dissenting opinions, and suggests that while one might applaud the substantive conclusion the Court has reached, the reasoning offered by the majority suffers from several obvious weaknesses both in narrow doctrinal terms and from the broader perspective of safeguarding the Court from well-founded criticism that it is overstepping the bounds of its legitimate constitutional role.

Liberty, Equality and the Right to Marry under the Fourteenth Amendment