Constitution Day Lecture with Professors James Fleming and Linda McClain


Boston University Professors of Law James Fleming and Linda McClain delivered the eighth annual David Aldrich Nelson Lecture on Constitutional Jurisprudence on September 17, 2015, giving a talk at the University of Missouri Law School on the judicial foundations and future implications of Obergefell v. Hodges, the Supreme Court’s recent landmark marriage decision.

Prof. Fleming began by grounding Justice William Kennedy’s majority opinion in a judicial philosophy, like that of former Associate Justice John Marshall Harlan II, that treats the Constitution as a living charter of abstract, aspirational principles designed to promote the realization and growth of the ideals of equality and liberty. This method of constitutional interpretation, Prof. Fleming explained, made possible a decision that drew on past judicial precedent to add new dimensions to, rather than narrowly confine the definition of, constitutionally guaranteed freedoms–a decision, in Justice Kennedy’s words, that “respects our history and learns from it without allowing the past alone to rule the present.” Prof. McClain added how, in the case of Obergefell, this interpretational philosophy thus allowed the court to not only address new insights into liberty that had developed over time but to also resolve a form of inequality that had arisen in spite of the 14th Amendment’s protections. More specifically, both speakers emphasized how, in his substantive due process claim with regard to same-sex marriage as a fundamental right, Justice Kennedy was able to judicially account for and consolidate broad and inclusive shifts in society’s understanding of the institution of marriage as it relates to individual dignity, autonomy, and identity.

However, both Prof. Fleming and Prof. McClain also noted how examining the public and private components of the definition of marriage vis à vis Obergefell reveals the conservative side of Justice Kennedy’s thinking. If, on the one hand, his opinion affirmed same-sex marriage as a necessary liberty, it also underscored the vital importance of the institution of marriage in general, as “a keystone of the Nation’s social order.” Or, as Prof. Fleming pointed out, alongside Justice Kennedy’s liberal discussion of a right to choice was a more conservative moral goods argument for the constitutional protection of same-sex marriage. In closing the talk, Prof. McClain explored the significance of Obergefell going forward, addressing the religious liberty debates it has already sparked and raising questions regarding whether the decision opens up the future of marriage to plural unions.

The Kinder Institute also hosted a faculty seminar later in the afternoon to discuss Prof. McClain’s recent article “Marriage, Conscience, and Bigotry,” which was followed by a Constitution Day reception in the Great Hall at the Reynolds Alumni Center on the MU Campus. All events were sponsored in partnership with the Alexander Hamilton Institute for the Study of Western Civilization in Clinton, NY.

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