Peter Nicolas, Fundamental Rights in a Post-Obergefell World, 27 Yale J. L. & Feminism 331 (2016), https://digitalcommons.law.uw.edu/faculty-articles/282
Yale Journal of Law and Feminism
Due Process Clause, Equal Protection Clause, Obergefell v. Hodges, same-sex marriage, Washington v. Glucksberg
In this Article, I identify and critically examine three substantive criticisms raised by the dissents in the Supreme Court's 2015 decision in Obergefell v. Hodges, which struck down state laws and constitutional provisions barring same-sex couples from marrying within the state or having their out-of-state marriages recognized by the state. First, that the majority improperly framed the right at issue broadly as the right to marriage instead of narrowly as the right to same-sex marriage, conflicting with the Court's holding in Washington v. Glucksberg that in fundamental rights cases the right at issue must be framed narrowly, and in turn opening the door to the Court finding an analogous right to polygamous marriage.
Second, that the right to marriage sought in the case was a positive right, and that the Court thus erred in recognizing the right as fundamental under the Due Process Clause, which only protects negative rights. And finally, that the majority's invocation of the Equal Protection Clause in tandem with the Due Process Clause in support of its conclusion was both doctrinally without support and violated the canon against unnecessarily deciding constitutional questions. First, I contend that the majority's framing of the right at issue broadly as the right to marriage was consistent with Glucksberg, demonstrating that the precedents upon which it was built, while requiring specific framing, do not call for the narrowest framing possible.
I further demonstrate that because Glucksberg's framing requirement is only the first step in a multi-step process for determining a law's constitutionality, the majority's approach does not portend the striking down of laws prohibiting plural marriage. Next, while agreeing with the dissents that the Due Process Clause protects only negative rights, I demonstrate that the Equal Protection Clause has historically protected positive rights. Because marriage has historically consisted of a bundle of rights, both positive and negative, I argue that the majority's invocation of both clauses was not only supported by precedent but was also necessary to the decision.
Finally, I consider the implications of Obergefell's invocation of both the Equal Protection and Due Process Clauses on a specific hypothetical: a future law enacted by a state legislature to withdraw from the marriage business by eliminating state-sanctioned marriage on an even-handed basis for same-sex and opposite-sex couples alike. I demonstrate that as a result of other doctrinal developments in the Court's substantive due process jurisprudence, there likely are no longer any negative rights that a state can constitutionally tie to marriage, and thus that if the Court were confronted directly with the question, it would conclude that the right to marry as it exists today consists solely of positive rights protected by the Equal Protection Clause.
Because fundamental rights protected by the Equal Protection Clause can be extinguished by states so long as they do so in an even-handed manner, this arguably means that a state could withdraw from the marriage business. However, I contend that because the Due Process Clause also protects a separate negative right related to marriage—the right of existing married couples to retain their status as such—a state could never truly eliminate marriage on an even-handed basis because it could not retroactively strip existing married couples of their status as married. Accordingly, despite the conditional nature of the positive fundamental right to marry, I conclude that the right, once created by a state and exercised by some, cannot be subsequently withdrawn.