Which Rights are Right: Understanding Constitutional Rights through Analysis of Obergefell’s Right to Marry

Mason Malone


In Obergefell v. Hodges, the Supreme Court recognized the “right to marry” as “fundamental,” extending it to same-sex couples. While the outcome—the recognition of same-sex marriages by every state—may be just, the means the Court uses to achieve it are suspect. As this article will demonstrate, when the Court recognizes a “right,” it limits the power of the legislative branch, just as the rights enumerated in the Constitution do. For example, the freedom of speech comes from the First Amendment’s prohibition on government regulation of speech. Yet unlike “freedom of speech,” the “right to marry” is unenumerated, appearing nowhere in the founding document or its amendments. Though the dissenters in Obergefell may be right that the recognition of a “right to marry” is dangerous, they are wrong to establish such a high bar for recognizing unenumerated constitutional rights. This article will examine primary sources from the First Federal Congress, the Ninth Amendment in relation to the Constitution, and secondary literature on interpreting these primary sources in order to determine the Founders’ understanding of constitutional rights. By determining the meaning of ‘right’ as used in the Constitution and by the Supreme Court, jurists, students of law, and legal professionals can begin to understand which unenumerated rights are held by the people—which ones are valid and which are not. This article will demonstrate that rights which require government action do not appear to fit with the Founders’ conception of rights retained by the people while those rights which merely prohibit government interference do.


Constitutional Rights; Supreme Court; Obergefell v. Hodges

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