Somin Files Amicus Brief in Obergefell v. Hodges

Professor Ilya Somin filed an amicus brief on behalf of legal scholars in Obergefell v. Hodges, a consolidation of same-sex marriage cases before the U.S. Supreme Court. The brief, co-authored with Professor Andrew Koppelman of Northwestern University School of Law, argues that laws banning same-sex marriage should be invalidated because they discriminate on the basis of sex.


[L]aws banning same-sex marriage are in part based on “overbroad generalizations about the different talents, capacities, or preferences of males and females” of a kind that the Equal Protection Clause seeks to combat. United States v. Virginia, 518 U.S. 515, 533 (1996). These generalizations are in significant part motivated by efforts to enforce stereotypical, traditional gender roles, even if that motivation is not present on the part of all supporters of these laws. Thus, laws banning same-sex marriage must be invalidated not only to protect against formal sex discrimination, but also to prevent states from adopting laws based on overbroad stereotypes about abilities and social roles of both men and women.

Marriage laws discriminating on the basis of sex are also inconsistent with the original meaning of the Fourteenth Amendment, which forbids such discrimination unless it can be justified by a state interest unrelated to class discrimination and justified by relevant factual evidence. Today, our understanding of same-sex relationships is far more advanced than in the nineteenth century, and the application of the Amendment’s original principles must take account of that increased knowledge.

Also joining in support of the brief are legal scholars Stephen Clark, Sanford Levinson, Irina Manta, and Erin Sheley.

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