As I said in class, I want you to read Obergefell not so much for its doctrine concerning same-sex marriage, but rather as the most recent boiling point in the Great Debate between original understanding originalism and the Living Constitution.
Please read the dissenting opinions as carefully as you read the majority opinion, because the dissenting opinions are almost completely focused on the role of the Court in applying vs. making constitutional law.
I will ask a goodly number of you to share your views on Obergefell and whether it is a legitimate judicial application of the Written Constitution.
I want everyone to think through his or her views of whether the definition of marriage is committed by the Written Constitution to the federal judiciary or to democratic self-government by we the people in the several states.
What would have happened with respect to the same-sex marriage issue if the Court had said under the 10th Amendment the states--not the Court-- have the power to define marriage?
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