IV. CHALLENGING SAME-SEX MARRIAGE PRECEDENT

NOTE A SHIFT TOWARDS ORIGINALISM ON THE SUPREME COURT: A PLAUSIBLE THREAT TO SAME-SEX MARRIAGE

Nicholas Suit* 1

This Note seeks to examine and evaluate the plausible threat that originalism poses to the constitutional right of same-sex marriage dictated by the decision in Obergefell v. Hodges (2015). With the recent confirmation of conservative Justice Amy Coney Barrett to fill the vacant seat left by the passing of Justice Ruth Bader Ginsburg, the Supreme Court of the United States, or the “Court,” is now conservative-leaning with a 6-3 majority. However, this Note will look past the arbitrary divide in political ideologies of the current justices, as U.S. Supreme Court justices are intended to be nonpartisan observers of the law. It will instead articulate how the new breakdown of judicial philosophies on the Court, originalism and nonoriginalism, can affect same-sex marriage. The research in this Note will primarily cover Amy Coney Barrett’s confirmation and jurisprudential stance, the judicial interpretations held by the other five conservative-leaning justices, the decision of Obergefell v. Hodges (2015), and Justices Thomas and Alito’s recent statement regarding the decision in Obergefell. Through this research and accompanying analysis, the Note will ascertain if there is a probable threat to the right for same-sex couples to marry as a result of originalism.

I. INTRODUCTION....................................................................................2

II. THE RISE OF ORIGINALISM ON THE SUPREME COURT.........................4 A. Originalism and Non-Originalism.........................................4 B. Contemporary Judicial Philosophies on The Court ..............4 III. LEGALIZATION OF SAME-SEX MARRIAGE...........................................5 A. Obergefell v. Hodges..............................................................6

1* B.S. Candidate for Business Administration (major), Fordham Gabelli School of Business at Rose Hill, Class of 2023. Being a member of the Fordham Undergraduate Law Review as a Senior Editor has been an extremely rewarding experience. I would like to thank the Editorial Board of the Fordham Undergraduate Law Review and Senior Editors who helped edit this Note and made the publication of this Note possible. I owe special thanks to Tyler Raciti for his immense support and guidance throughout the entire writing and editing process. Lastly, I want to thank my family and friends for their endless support and constant encouragement.

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