Document Type

Article

Publication Date

2-11-2016

Abstract

Substantive due process issues implicitly concern voice Whose voice will be heard Although such issues often remain submerged the Justices occasionally translate them into disputes over democratic participation and power The Supreme Courts most important substantive due process decision in years Obergefell v Hodges entailed such a battle over democracy The multiple dissenting opinions insisted that the decision demeaned the opponents of samesex marriage many of whom were inspired by traditional values and religious convictions The majority explicitly disagreed reasoning that the case resolved the rights of samesex couples to marry and did not diminish the opponents voices The dissenters were right at least in partObergefell necessarily demeaned traditional and religious opponents of samesex marriage but nevertheless the Court reached the correct outcome Judicial neutrality is impossible so the Courts decision inevitably would have privileged one voice or view over another Although the dissenters further asserted that the majority impaired democracy the opposite was true Laws that discriminate against peripheral groups such as gays and lesbians undermine the democratic process In a wellfunctioning democracy certain issues must be off the table beyond democratic debate Treating gays and lesbians as full and equal citizens in good standing is one such issue whether in regard to marriage or otherwise The majoritys decision in Obergefell ultimately bolstered the democratic process

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