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 2020). Ours concurs in the majority’s equal protection analysis and offers an additional and important constitutional ground for the right of same-sex couples to marry in the Fourteenth Amendment’s Due Process Clause. We observe that due process historically has played a critical role in protecting intimate and family relations—both marital and nonmarital—of persons who do not conform to majority mores. By focusing on the relationship between equal protection and due process, we show why this case, as well as the Court’s modern substantive due process decisions, properly fall within the Carolene Products tradition of judicial oversight over the democratic process.<br><br>Our due process reasoning answers common objections to substantive due process advanced by Chief Justice Roberts and others dissenting in Obergefell. Many 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.<br><br>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.