What Obergefell v. Hodges Should Have Said, Concurring Opinion

Professor Jack Balkin has convened a group of scholars to author their own opinions in What Obergefell v. Hodges Should Have Said (forthcoming 2017). Ours concurs in the majority’s equal protection analysis and goes on to offer due process as a separate ground on which to recognize same-sex couples’ right to marry. Our due process reasoning departs not only from Professor Balkin’s majority opinion but also from Justice Kennedy’s opinion for the Court in Obergefell. And it answers common objections to substantive due process advanced by Chief Justice Roberts and others dissenting in Obergefell.We write on due process grounds because of our concern that existing equal protection doctrine approaches the question in Obergefell in ways that (1) privilege marriage as the framework for relationship recognition and (2) privilege spousal over parental aspects of the marriage relationship. Our due process analysis situates same-sex couples’ right to marry within a broader range of liberty decisions that protect rights to intimate and family relationships and that locate marriage along a continuum of protected relationships. We show that due process protects not only spousal but also parent-child relationships. Some claim due process secures negative liberty only. We show that due process precedents require government to recognize certain spousal and parental relationships; due process protects the individual’s decision to form and maintain relationships as well as to avoid them. And there are many who attack the liberties protected by the Court’s due process cases as “unenumerated” rights with no more legitimacy than the Court’s infamous decision in Lochner. We show that Americans have long invoked due process to protect substantive as well as procedural rights, and show how in modern due process cases, from Griswold and Roe to Casey and Lawrence, the Court has acted in the tradition of Carolene Products, intervening on behalf of those whose conduct the majority has punished and stigmatized. The Court’s liberty and equality cases reflect an evolving understanding of the citizenship status of those whose conduct was once thought reasonable to criminalize.We offer our liberty analysis of same-sex marriage claims to strengthen, rather than supplant, equal protection frameworks. In its current form, equal protection doctrine tends to focus narrowly on questions of classification, leading critics of marriage equality — on the Court and in this volume — to object that bans on same-sex marriage do not classify on the basis of sexual orientation. We show that discretion shapes judgments about classification in race, sex, and orientation cases, and demonstrate how marriage bans classify on the basis of orientation. Yet we ultimately conclude that classification is neither necessary nor sufficient for an equal protection violation. Cases like Brown and Windsor reason about equal protection in antisubordination terms, focusing on a law’s social meaning and impact. Our liberty analysis supports this approach to equal protection, as it illuminates the importance of the interest at stake and the harm its deprivation may cause.