Sociology and Anthropology Vol. 6(3), pp. 297 - 312
DOI: 10.13189/sa.2018.060303
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Blind to the Dignity of the Other: Obergefell v Hodges, Identity Oppression and the Deconstruction of Textualism and Originalism

Carter A. Wilson *
Department of Political Science and Public Administration, Northern Michigan University, USA


While analyzing Obergefell (same sex marriage) and other select court decisions related to identity oppression (the oppression of groups identifiable by race, gender or sexual orientation), I demonstrate the limits of a traditional textualist and originalist approach and the advantages of a critical theory approach to legal analysis. Although I define both of these approaches, I focus on the application of critical theory to an analysis of Supreme Court decisions that sustain identity oppression. Critical theory focuses on the manner in which the dominant culture biases the decisions of Supreme Court judges against racial, gender and sexual orientation minorities. I illustrate that in Obergefell, both the dissenting and majority opinions applied a traditional textualist approach. However, the difference between the two opinions arose not from textualism but from the manner in which the dominant culture biased the judgment of the dissenters, distorted their concept of liberty and rights, and left them blind to the dignity of members of the identity group. Although I applaud the "new textualism," I argue that it does not go far enough. While focusing on methods of analysis, it pays too little attention to identity biases in the dominant culture. I argue that the dominant culture contains images, stories, ideas and assumptions about identity groups that diminish the dignity and humanity of their members. This culture operates to legitimize and normalize patterns of identity oppression. Although, there has been much progress in civil rights policies, this problem of the dominant culture persists in constitutional law today.

Critical Theory, Dominant Culture, Identity Oppression, Liberty, Originalism, Same Sex Marriage, Textualism

Cite this paper
Carter A. Wilson . "Blind to the Dignity of the Other: Obergefell v Hodges, Identity Oppression and the Deconstruction of Textualism and Originalism." Sociology and Anthropology 6.3 (2018) 297 - 312. doi: 10.13189/sa.2018.060303.