Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the right and the left. It is love that is the heart and spirit of Obergefell. Part I of this essay will discuss the concept of love. Part II will argue that Kennedy’s Obergefell opinion expresses unconditional love for LGBT people in tone, language, and substance. Part III will argue that Kennedy’s six key reasons for concluding that marriage is central to individual autonomy and is therefore a fundamental right under substantive due process all implicitly invoke love. Part IV will discuss some of the implications of understanding Obergefell as an opinion about love.
Reginald Oh, Love is Love: The Fundamental Right to Love, Marriage, and Obergefell v. Hodges, 13 ConLawNOW 143 (2022).