When we conceptualized this symposium, Roe v. Wade1 was still the law of the land, albeit precariously. We aimed to commemorate its fiftieth anniversary by exploring historical, legal, medical, and related dimensions of access to abortion as well as the challenges ahead to secure reproductive justice. With the leak of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization on May 2, 2022, we shifted to mark the dawn of a new era. In the nearly identical official (...) opinion announced on June 24, 2022,2 Justice Samuel Alito, writing for the majority (6-3), overturned Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey.3. (shrink)

This essay assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation, as elaborated in James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalism (2015), by evaluating the recent, momentous constitutional controversy in the United Sates of America over access by same-sex couples to civil marriage. Justice Kennedy’s landmark majority opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing evolving (...) understandings of constitutional guarantees of equality, the “promise of liberty” and the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry —and marriage— and stressed the role “insight” and generational progress. Evolving understanding played a similar role in Goodridge v. Department of Public Health (2013), which provided a template for Kennedy’s rejection of a narrow originalism focused only on historical practices or original intent. Such moral readings of the Constitution have played a significant role in making the Fourteenth Amendment less of (in Justice Ginsburg’s words) an “empty cupboard” for gay men and lesbians, just as they have played a role in making it less empty in the context of sex equality. This essay demonstrates how the contrasting approaches to interpretation in the majority and dissenting opinions in DeBoer v. Snyder (reversed by Obergefell) previewed the interpretive battle between the Obergefell majority and dissents, but with the sides reversed. It then observes that, while some legal scholars offered, in amicus briefs filed in Obergefell, originalist arguments for same-sex marriage, such arguments persuaded neither other originalist scholars nor the Obergefell dissenters. (shrink)