No one could deny that Obergefell v. Hodges was last Term’s blockbuster case. But there has been lots of debate about whether the decision is significant for more than just its momentous holding that same-sex marriage is a constitutionally protected right. In his Comment on Obergefell for Harvard Law Review’s annual Supreme Court issue, Kenji Yoshino argues that Obergefell “is a game-changer for substantive due process jurisprudence” and thus will likely have an impact in areas far beyond same-sex marriage.

In defending that assertion, Yoshino walks the reader through the Supreme Court’s major substantive due process decisions of the last five decades.  In its previous cases, and in particular its decision in Washington v. Glucksberg, the Court has focused on three issues: first, the Court has said that to be protected the right must be grounded in tradition; second, it has explained that the right must be defined with specificity, rather than analyzed at a more general level of abstraction; and third, the Court implied a greater willingness to protect negative “freedom from” rights rather than positive “freedom to” rights.  All three strands of Glucksberg have been picked apart by academics and critiqued by jurists, but nonetheless that case provided the standard for substantive due process for nearly two decades. Yoshino asserts that the decision has now been displaced by Obergefell — a view shared by Chief Justice John Roberts, who declared in his dissent that the majority “effectively overrule[d] Glucksberg, the leading modern case setting the bounds of substantive due process.”

According to Yoshino, the Obergefell majority replaced Glucksberg’s rigid formula with the looser, common-law approach articulated in Justice John Harlan’s dissent in the 1961 case Poe v. Ullman. Harlan advocated balancing individual liberties against government interests with an eye toward tradition but without being shackled to the past. Indeed, Harlan referred to tradition as a “living thing,” and he urged the Court to pay attention not only to the “traditions from which [the country] developed” but also to “the traditions from which it broke.” Thus, for Harlan, substantive due process was not inherently backward looking, as the Court concluded it was in Glucksberg.  Yoshino concludes that Obergefell embraced this approach and rejected Glucksberg’s constraints of tradition, specificity, and negative rights: the Obergefell majority refused to be limited by the long historical tradition against same-sex marriage; it claimed the case was about the generalized “right to marry” (and not the more specific right of same-sex couples to marry); and it ultimately found constitutional protection for a positive right of same-sex couples to marry.

After noting Obergefell’s break from Glucksberg, Yoshino addresses the hard questions posed by the dissenters: does the Court risk replicating its worst mistakes of the past by adopting this looser, common-law approach to substantive due process? Roberts warned that it was just such open-ended reasoning led to decisions such as Dred Scott and Lochner, and he speculated that the Court’s reasoning would also support finding a constitutional right to plural marriage.

Yoshino acknowledges this concern, but he believes the answer can be found in Obergefell’s integration of equal protection into its analysis, producing what Yoshino calls “antisubordination liberty.” The Obergefell majority stated that the liberty and equality claims are “interlocking,” such that “[e]ach concept — liberty and equal protection — leads to a stronger understanding of the other.” In other words, when determining new liberties under the Due Process Clause, the Court must also consider the effect of that liberty on historically subordinate groups through an equal protection analysis. If the Court had considered these effects in either Dred Scott or Lochner, Yoshino believes the results in those cases would have been different. And although Yoshino concedes that under the common-law analysis of liberty interests “it might well be that the Court would find a new tradition supporting polygamy,” he believes that the antisubordination principle would provide a “strong constraint” on recognition of such a right because of the frequently subordinate position of women in such polygamous relationships.

Yoshino concedes, however, that he does not know what the future will bring now that the Court appears to have replaced the constraints of Glucksberg’s formula for a common-law approach. He concludes that “[d]iscerning new liberties has been, and always will be, more an art than a science. After Obergefell, it is simply much more openly an art.”

Posted in Obergefell v. Hodges, Academic Round-up

Recommended Citation: Amanda Frost, Academic highlight: Yoshino on Obergefell v. Hodges, SCOTUSblog (Nov. 18, 2015, 2:38 PM), http://www.scotusblog.com/2015/11/academic-highlight-yoshino-on-obergefell-v-hodges/