In the U.S. Supreme Court case, Obergefell v. Hodges, same-sex couples were granted the right to marry and to found a family. One of the mist fundamental questions regarding this case is, “Did these jurists (judges) “interpret” or apply the U.S. Constitution, or did they “make” new law?” I strongly believe that granting the right to marry to homosexual couples cannot be regarded as making a new law. It should be taken into consideration that “constitutional law is not a mechanical exercise of just “applying the law” (Stone, "Our Fill-in-the-Blank Constitution").
In this particular case, the judges interpreted the U.S. Constitution. Taking into consideration that “Under the Fourteenth Amendment’s Equal Protection Clause, state action that classifies groups of individuals may be subject to heightened levels of judicial scrutiny” and the fact that state same-sex marriage prohibition has been contested on the grounds of its infringement upon the fundamental right to marry, the ruling made in the Obergefell v. Hodges case should be considered as an interpretation of the existing laws and the U.S. Constitution (Perry 1).
Similarly, the 1954 case, Brown v. Topeka Board of Education, cannot be regarded as making a new law as the ruling was based on the interpretation of the U.S. Constitution, namely of the existing Fourteenth Amendment’s Equal Protection Clause. As compared to the Obergefell v. Hodges case, Brown v. Topeka Board of Education also eliminated a particular type of infringement upon the fundamental right on the basis of race.
Taking into consideration both of the above0mentioned cases, one may draw a conclusion that the society leads the law. To put it otherwise, changes in our culture promote changes in our laws and institutions. Since the society is constantly evolving, more and more laws and regulations, that people of the 19th or 20th centuries would have never thought of, are coming into existence. Granting women the right to vote, granting black children the right to education on an equality with others, granting homosexual couples the right to marry are the most striking examples demonstrating profound changes in the societal and cultural norms and proving that the U.S. Constitution is a ‘living Constitution’.
Works Cited
Perry, Rodney M. "Same-Sex Marriage: A Legal Overview." Congressional Research Service 13 Jan. 2015. Print. Web. 28 Jan. 2016.
<https://www.fas.org/sgp/crs/misc/R43886.pdf>.
Stone, Geoffrey R. "Our Fill-in-the-Blank Constitution." The New York Times. The New York Times, 2010. Web. 29 Jan. 2016. <http://www.nytimes.com/2010/04/14/opinion/14stone.html?_r=0>.
