• Mario Nicolais

Marriage decision isn’t ‘next’ Roe, it’s closer to Brown

In the wake created by the U.S. Supreme Court’s decision in Obergefell v. Hodges, the marriage equality case, there has been a rush to pick the ruling apart and compare it to past landmark decisions. Due to the inherent social-political issue — and the subsequent bitter divides — some have cited it as the “next” Roe v. Wade.


I don’t subscribe to that position.


I think the Roe v. Wade comparisons are only superficially based on the liberal versus conservative political construct. It’s understandable. It is an easy comparison and lends itself to pre-conceived, pre-narrated storylines.


Instead, I believe Obergefell shares a deeper, richer parallel to 1954’s Brown v. Board of Education.


The most basic similarity between the cases is their 14th Amendment underpinning. Civil rights cases based on the 14th Amendment’s equality clause, both courts made this basic tenet the bedrock foundation for expanding protections to minority populations. Unlike the “penumbra of privacy” girding the new rights Justice Harry Blackmun annunciated in Roe, the footings in Brown and Obergefell allowed the court to expand on rights already afforded other Americans. This is a legally important distinction, as it likely protects the Obergefell outcome from much of the subsequent legal attacks that Roe engendered for decades.


Both Brown and Obergefell also used the 14th Amendment platform to springboard into a decision filled with sweeping language, the second major similarity. Attacks immediately after Obergefell, and even in dissents against it, derided the language used by Justice Anthony Kennedy. The apropos colorful language employed by Kennedy in declaring, “In forming a marital union, two people become something greater than once they were” stands in stark contrast to the usually dry prose of legal writing. But Kennedy’s words are not dissimilar from the language used by Blackmun in Brown when he wrote “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal” and that segregation in schools affect chldren’s “hearts and minds in a way unlikely to be undone.”


In addition, the current of social science runs deeply in both Brown and Obergefell. In fact, Brown is widely acknowledged to be the first Supreme Court opinion to place a heavy reliance on social science in its discussion of segregation’s effects on African-American children. Similarly, Obergefell goes into great length dissecting the benefits of marriage on couples, children, and society in general.


Finally, both decisions sparked immediate dissent from authorities across the country. The disobedience following Brown became so severe that it led to a second case regarding its implementation, colloquially known as Brown II. Already, officials in states such as Texas and Alabama have signaled a willingness similarly to subvert the Obergefell decision.


One major difference between the two, though, is the timing. Brown sparked a period of civil rights advocacy that would crest over the next two decades. Obergefell seems to be the culmination — if not the end — of another civil rights era. In this aspect, Obergefell hews more closely to Justice Thurgood Marshall’s charge to “do what think is right and let the law catch up.”


But then again, Thurgood Marshall was also the winning attorney in Brown.



Mario Nicolais is an attorney and legal scholar at the Denver law firm of Hackstaff & Snow LLC.


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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