On June 26, 2015, The U.S. Supreme Court ruled that same-sex marriage is a fundamental right in the decision on Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. This controversial decision overturned the law of more than 17 states. In the 5-4 decision, Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan voted with the majority and Justices Roberts, Scalia, Thomas and Alito were dissenting. At the heart of the controversy is the philosophy of judicial restraint and judicial activism. Was the Obergefell decision an example of judicial activism? Certainly, because it declared state laws banning same-sex marriages as unconstitutional. The Court’s decision, which was based on precedent and interpretation of the Constitution, was just.
A concept known as “judicial review” was established in 1803. Chief Justice John Marshall stated “the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void....It is emphatically the province and duty of the judicial department to say what the law is” (Marbury v. Madison, 1803). Chief Justice Marshall gave the courts the right to overturn cases against the legislative or executive branches, known as judicial review, giving immense power to the judicial branch (Clinton, 2015). Since then, there has been much debate over how judges should use this power. Should they show restraint or should they interpret the Constitution, expanding its scope?
Judicial restraint and judicial activism are both philosophies of judicial decision-making. Supreme Court Justices demonstrate judicial restraint when they refrain from acting as policymakers, deferring to the legislative and ...
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...lieves they have the obligation to invalidate the laws of many states. While Chief Justice Roberts may disagree, his dissent is weaker, he contradicts himself and, at times, seems to be offering an opinion that supports the majority. Justice Kennedy provides stronger argument.
Summary and Conclusion
The court’s job is to determine whether the Constitution is protecting a right that a state or federal law contradicts. (S.M., 2015) If a court majority believes it does, it overturns the law. Alexander Hamilton explains this in Federalist Paper No. 78, “The interpretation of the laws is the proper and peculiar province of the courts…Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” In the Obergefell decision, the Supreme Court majority clearly did their job.
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