Obergefell v. Hodges: Framing Fundamental Rights
Susannah W. Pollvogt*
Prior to the United States Supreme Court’s decision in Obergefell v.
Hodges,1 the relationship between the due process and equal protection
prongs of Fourteenth Amendment analysis presented a persistent
constitutional conundrum.2 This is because the due process inquiry is
essentially conservative and backwards-looking: it asks whether a
particular right is “deeply rooted in this Nation’s history and tradition.”3
Thus, it is an inquiry that privileges the status quo and, implicitly, status
quo notions of who is entitled to demand access to fundamental rights.4
* Associate Professor, Washburn University School of Law. J.D., Yale Law School,
1998; B.A, Williams College, 1994.
1
No. 14–556, 2015 WL 2473451, --- S.Ct. --- (June 26, 2015).
2
See, e.g., Susannah W. Pollvogt, Marriage Equality, United States v. Windsor, and the
Crisis in Equal Protection Jurisprudence, 42 HOFSTRA L. REV. 1045, 1059-61 (2014);
Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747 (2011); Pamela S.
Karlan, Loving Lawrence, 102 MICH. L. REV. 1447 (2004); William N. Eskridge, Jr.,
Destabilizing Due Process and Evolutive Equal Protection, 47 UCLA L. REV. 1183
(2000).
3
Bowers v. Hardwick, 478 U.S. 186, 192 (1986). See also Cass R. Sunstein, Sexual
Orientation and the Constitution:A Note on the Relationship Between Due Process and
Equal Protection, 55 U. CHI. L. REV. 1161, 1163 (1988):
The Due Process Clause often looks backward; it is highly relevant to the
Due Process issue whether an existing or time-honored convention,
described at the appropriate level of generality, is violated by the practice
under attack. By contrast, the Equal Protection Clause looks forward,
serving to invalidate practices that were widespread at the time of its
ratification and that were expected to endure. The two clauses therefore
operate along different tracks.
4
One of the most striking examples of this conservatism in action is found in the Court’s
reviled decision in Bowers v. Hardwick, discussed at greater length below. In that case,
the question boiled down to whether sexual minorities—characterized unsympathetically
in the opinion as sexual deviants—deserved the same dignity and privacy as the rest of
1
By contrast, the equal protection inquiry is essentially disruptive and
forward-looking:5 it asks whether the historical exclusion or
marginalization of a particular group of persons can continue to be
justified.6 It is an inquiry that critiques the status quo and creates the
possibility for change in our conception of political and social
“belonging.”7
Thus, when due process and equal protection inquiries meet head-tohead—as they did in Loving v. Virginia, Bowers V. Hardwick, Lawrence v.
Texas, and most recently in Obergefell—contrasting constitutional values
are inevitably placed in tension.
Due to these persistent questions about the intersection of due process
and equal protection analysis, it seemed unlikely that the Court would rely
us. This question created an easy path to importing anti-gay prejudice into the analysis. A
mere seventeen years later, in Lawrence v. Texas, 539 U.S. 558 (2003), Justice Kennedy
answered the same question in the opposite manner, although it was unclear that anything
had changed between the two opinions other than an emerging consensus that sexual
minorities were perhaps deserving a dignity. But there was no doctrinal answer to why
this was so.
5
See Sunstein, supra n. 3. This claim is, of course, overstated. There are multiple ways in
which equal protection analysis has been harnessed to preserve the status quo. See, e.g.,
Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of StatusEnforcing State Action, 49 STAN. L. REV. 1111 (1997). But these somewhat exaggerated
characterizations are intended to highlight the tensions between due process and equal
protection approaches.
6
At least, this is one core understanding of equal protection—the understanding
advanced in Carolene Products footnote four. See United States v. Carolene Products,
304 U.S. 144, 152 n.4 (1938) (suggesting need for closer judicial scrutiny of state action
enacting prejudice against “discrete and insular minorities”); see also Darren Lenard
Hutchinson, “Unexplainable on Grounds Other Than Race”: The Inversion of Privilege
and Subordination in Equal Protection Jurisprudence, 2003 U. Ill. L. Rev. 615, 682
(2003) (interpreting Carolene Products footnote four as consistent with antisubordination
principles).
7
See Jack M. Balkin, The Constitution of Status, 106 YALE L.J. 2313 (1997); Kenneth L.
Karst, Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1 (1977).
2
on a fundamental rights analysis in resolving the question of marriage
equality on the state level in Obergefell.8 But while Justice Kennedy’s
majority opinion in that case did not eliminate all uncertainty about this
fraught relationship, it went further than any decision to date in
establishing a framework for resolving the due process-equal protection
tension.
Before Obergefell: How to Frame Fundamental Rights?
The crux of the problem that existed before Obergefell was this: how
should courts properly frame the right at issue in any given case prior to
investigating whether that right should be deemed “fundamental”? 9 So,
for example, everyone knows that “marriage” is a fundamental right per
Loving v. Virginia10 and Zablocki v. Redhail,11 among other cases. Based
on this precedent, it would seem self-evident that laws prohibiting same-
8
In addition, the fundamental-rights approach opens up the polygamy can of worms.
That is, if marriage is a fundamental right for all persons, then laws banning polygamy
should receive strict judicial scrutiny. But it appears as if Justice Kennedy anticipated this
concern, in that he emphasized that marriage was in its essence a unique, two-person
union. See Obergefell v. Hodges, No. 14–556, 2015 WL 2473451 at *13, --- S.Ct. --(June 26, 2015) (“A second principle in this Court’s jurisprudence is that the right to
marry is fundamental because it supports a two-person union unlike any other in its
importance to the committed individuals.”).
9
Of course determining whether the right at issue in any given case is fundamental
matters because this is one of the few ways to trigger heightened judicial scrutiny in an
equal protection challenge.
10
388 U.S. 1 (1967).
11
434 U.S. 374 (1978).
3
sex marriages severely curtail this right, thus triggering strict judicial
scrutiny.12
But when proponents of marriage bans and hostile courts faced this
claim, they re-framed the right at issue, arguing that plaintiffs were asking
courts to recognize a radical new right: the right to same-sex marriage.13
And it is abundantly clear that same-sex marriage is not a fundamental
right. The test for determining whether a right is fundamental is whether
that right is “deeply rooted in this Nation’s history and tradition.”14 Samesex marriage was inconceivable to most people even just a few decades
ago, and was vigorously attacked as illegitimate once the marriage
movement began to pick up steam. Same-sex marriage may be a lot of
things, but “deeply rooted in this Nation’s history and tradition” it is not.
But the question is this: How do we know whether to frame the inquiry
broadly—asking whether marriage is a fundamental right—or narrowly—
asking whether same-sex marriage is a fundamental right? Proponents of a
12
See Bostic v. Shaefer, 760 F.3d 352, 375 (4th Cir. 2014) (“[I]nterference with a
fundamental right warrants the application of strict scrutiny.” Zablocki v. Redhail, 434
U.S. 374, 383 (1978) (conducting a “critical examination” of the state’s interests in light
of precedent making clear that marriage is a fundamental right)).
13
See Kitchen v. Herbert, 755 F.3d 1193, 1209 (10th Cir. 2014) (proponents of same-sex
marriage ban arguing that precedent establishes a fundamental right to marry only for
opposite-sex couples); Bostic v. Schaefer, 760 F.3d 352, 375–76 (4th Cir. 2014)
(proponents of same-sex marriage ban arguing that states have previously sanctioned
only opposite-sex marriages); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1095-96
(D. Haw. 2012) (characterizing the right at issue as a right to same-sex marriage).
14
Lawrence v. Texas, 539 U.S. 558, 593 (2003) (“only fundamental rights qualify for this
so-called “heightened scrutiny” protection—that is, rights which are ‘deeply rooted in
this Nation’s history and tradition.’ “).
4
narrow framing relied primarily on Washington v. Glucksberg.15 That
case, which evaluated a claimed right to physician-assisted suicide, called
for a “careful description” of the right being asserted when assessing
whether that right is fundamental.16 But it is critical to note that there was
no equal protection claim in Glucksberg—there was no class-based
discrimination being alleged. Thus, Glucksburg did not engage with the
core tension between due process and equal protection guarantees:
fundamental rights must have tradition on their side, but that tradition will
likely incorporate a practice of exclusion as a key feature. Accordingly,
due process/fundamental rights analysis is good at recognizing liberties
ensconced in tradition, but you need an equal protection/antidiscrimination angle to determine if access to that right needs to be
expanded based on evolving notions of who “belongs” in our society.
Recognizing this (productive) tension reveals what is wrong with
framing the question as whether there is a fundamental right to same-sex
marriage:
This move [re-framing the right at issue as a right to samesex marriage] is deeply problematic from the perspective of
core equal protection values because what it does, in
essence, is ask whether members of a disfavored group (in
this case, same-sex couples) are entitled to the right to
15
521 U.S. 702 (1997).
16
Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
5
marriage rather than asking whether the marriage right
itself is fundamental in nature, as a universal proposition.
In other words, asking whether there is a fundamental right
to same-sex marriage is really asking whether same-sex
couples (or homosexuals) are entitled to the fundamental
right to marriage that heterosexual citizens enjoy. This is
analogous to asking in the 1960s whether there was a
fundamental right to interracial marriage, which was really
asking whether interracial couples are entitled to that right.
The posing of the question creates its own answer, because
of course historically excluded groups will not be perceived
as entitled to participation in the rights from which they
have historically been excluded. That is to say, the phrasing
of the question matters.17
In short, adding an adjective (like “same-sex”) to modify the right at
issue is an indirect way of invoking the out-group’s historical exclusion
from the right, thereby rendering any claim to history and tradition an
absurdity. Continued exclusion of the group seems natural, inevitable. It is
a powerful rhetorical move.
17
Susannah W. Pollvogt, Marriage Equality, United States v. Windsor, and the Crisis in
Equal Protection Jurisprudence, 42 HOFSTRA L. REV. 1045, 1060 (2014).
6
The Problem of Framing Rights with Reference to the
Excluded Group
This rhetorical move is not without precedent. The most egregious
example is found in Justice White’s majority opinion in Bowers v.
Hardwick.18 As is well known, that case involved a challenge to a Georgia
sodomy statute that criminalized all acts of sodomy—that is, all acts of
non-procreative sex, regardless of whether the conduct was engaged in by
heterosexual or homosexual (or bisexual, for that matter) individuals. And
yet, Justice White framed the issue with specific reference to sexual
minorities: “The issue presented is whether the Federal Constitution
confers a fundamental right upon homosexuals to engage in sodomy and
hence invalidates the laws of the many States that still make such conduct
illegal and have done so for a very long time.”19
This rhetoric lacks the subtlety of some of the pre-Obergefell lower
court decisions on the same-sex marriage issue in that Justice White
referred directly to the marginalized group in formulating the fundamental
rights inquiry. (Although it is noteworthy that in later passages Justice
White used the adjective form, referring to the right as that of
“homosexual sodomy.”)20 Needless to say, having framed the inquiry in
this manner, Justice White easily concluded that neither the text of the
18
478 U.S. 186 (1986).
19
Bowers v. Hardwick, 478 U.S. 186, 190 (1986).
20
Id. at 190–96.
7
Constitution nor our Nation’s history and tradition established a
fundamental right for homosexuals to engage in sodomy.21
Dissenting, Justice Blackmun called Justice White to task for his selfserving framing of the right at issue:
This case is no more about “a fundamental right to engage
in homosexual sodomy,” as the Court purports to declare,
than Stanley v. Georgia was about a fundamental right to
watch obscene movies, or Katz v. United States was about a
fundamental right to place interstate bets from a telephone
booth. Rather, this case is about “the most comprehensive
of rights and the right most valued by civilized men,”
namely, “the right to be let alone.”22
21
Id. at 196. Surprisingly, some twenty years earlier, Justice White had written a
trenchant race-discrimination decision rejecting precisely this logic. In McLaughlin v.
Florida, the Court considered the constitutionality of a Florida law, which provided:
Any negro man and white woman, or any white man and negro woman,
who are not married to each other, who shall habitually live in and occupy
in the nighttime the same room shall each be punished by imprisonment not
exceeding twelve months, or by fine not exceeding five hundred dollars.
Justice White’s analysis was straightforward:
It is readily apparent that [the Florida statute] treats the interracial couple
made up of a white person and a Negro differently than it does any other
couple. No couple other than a Negro and a white person can be convicted
under [the Florida statute] and no other section proscribes the precise
conduct banned by[the Florida statute]. . . . When the law lays an unequal
hand on those who have committed intrinsically the same quality of offense
and sterilizes one and not the other, it has made as an invidious a
discrimination as if it had selected a particular race or nationality for
oppressive treatment.
And yet he was unable to recall this insight—the inherently invidious nature of making
criminal liability dependent on identity—two decades later in deciding Bowers.
22
Id. at 197.
8
Justice Blackmun’s insight was elevated to the level of controlling law
in 2003, when the error of Bowers was corrected by Lawrence v. Texas,23
which considered the constitutionality of a similar anti-sodomy law. To
overturn Bowers, the Lawrence decision did two things. First, it framed
the right at issue much more broadly:
The laws involved in Bowers and here are, to be sure,
statutes that purport to do no more than prohibit a particular
sexual act. Their penalties and purposes, though, have more
far-reaching consequences, touching upon the most private
human conduct, sexual behavior, and in the most private of
places, the home. The statutes do seek to control a personal
relationship that, whether or not entitled to formal
recognition in the law, is within the liberty of persons to
choose without being punished as criminals.24
Thus, rather than searching the text of the Constitution for a “right to
engage in homosexual sodomy,” Lawrence focused on the manner in
which regulation of consensual sexual practices implicated universal
values related to privacy and liberty.
Second, Lawrence directly confronted rather than eliding, as Bowers
did, the fraught relationship between these twin questions: (1) which rights
are fundamental, per our history and tradition, and (2) who is entitled to
23
539 U.S. 558 (2003)
24
Id. at 567.
9
access those rights? Recognizing and resolving this tension, Justice
Kennedy famously stated:
Liberty presumes an autonomy of self that includes
freedom of thought, belief, expression, and certain intimate
conduct. . . . Persons in a homosexual relationship may
seek autonomy for these purposes, just as heterosexual
persons do.25
In essence, Justice Kennedy concluded that homosexual persons were
similarly situated to heterosexual persons with respect to interests in
privacy and liberty.
But what Kennedy did not explain is exactly why “persons in a
homosexual relationship” enjoyed an equal entitlement to privacy and
autonomy in the intimate sphere. Was it simply because, by 2003, social
norms had shifted such that sexual minorities (or at least some sexual
minorities) were now accepted as part of society? If so, this is doctrine that
makes minority rights dependent on social acceptance by the majority—
which is not much protection at all. In short, in Lawrence, Justice
Kennedy did not give us a rule or test for determining when groups are
similarly situated such that they are equally entitled to enjoy access to the
same fundamental rights.
Kennedy’s decision in Obergefell finally answered that question.
Specifically, it did so by disaggregating an analysis of why homosexuals,
25
Lawrence v. Texas, 539 U.S. 558, 562, 574 (2003).
10
or persons in same-sex relationships, are similarly situated to other
Americans in their pursuit of fundamental rights.
Obergefells’s Guidance on the Fundamental Rights Inquiry
Many have criticized the soft contours of Justice Kennedy’s equa
protection jurisprudence. But Obergefell actually presents a disciplined
analysis that is quite helpful.
To understand Obergefell’s contribution, it is necessary to unpack the
logic of those who attempted to frame the relevant inquiry as whether
there exists a fundamental right to same-sex marriage. The unarticulated
premise of this approach is that the heterosexual nature of traditional
marriage is an essential and transcendent part of what makes the right
fundamental. That is, when we say “marriage,” we necessarily refer to and
incorporate a heterosexual dynamic that defines the essence of what
marriage is. To attempt to broaden marriage to include homosexual
relationships necessarily alters that essence, and requires a modification of
the term—that is, the particularizing moniker “same-sex marriage.”
Justice Kennedy explicated and interrogated this premise and found it
lacking. Kennedy carefully examined the history of marriage, its changes
over time, and its most important functions in our contemporary society.
He identified those functions as: (1) allowing for individual expression of
liberty and autonomy in the intimate sphere;26 (2) supporting a unique
26
Obergefell v. Hodges, No. 14–556, 2015 WL 2473451 at *12-13, --- S.Ct. --- (June 26,
2015).
11
two-person bond that allows for the expression of intimacy and
spirituality;27 (3) providing a vehicle for nurturing and protecting
children;28 and (4) facilitating our democratic social order.29
And Kennedy concluded, rightly, that same-sex couples were equally
able and entitled to participate in these functions as opposite-sex couples.
Same-sex couples have an equal interest in and aptitude for selfexpression, expression through an intimate union, raising children in a
stable environment,30 and participating in an institution that supports our
democratic social order. For these reasons, the fundamental right could not
properly be defined in such a way as to presumptively exclude same-sex
unions.31
27
Id. at *13-14.
28
Id. at *14-15.
29
Id. at *16.
30
While there is understandable controversy around the child-centered approach to
advocating for marriage equality, it cannot be denied that societal and judicial recognition
that same-sex couples were raising children helped establish same-sex couples as
“similarly situated” to opposite-sex couples.
31
This is a subject for lengthier discussion at another time, but this analysis was elegantly
presaged by Judge Walker’s opinion in Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.
2009). There, in a decidedly more gender-conscious decision, Judge Walker examined
whether sex-role differentiation was an essential and transcendent feature of marriage,
and concluded that it was not. Thus, the fundamental right of marriage could not be
interpreted as incorporating a presumption of heterosexuality. Id. at 992-93.
12
Larger Implications: An Evolving Analysis of What it Means to Be
“Similarly Situated”
While Justice Kennedy posed his analysis in Obergefell first as a due
process question, followed by an equal protection echo, his fundamental
rights inquiry is at heart about equal protection values and cannot be
isolated from them. This is because he resolved the question of how to
properly frame the right at issue by analyzing whether same-sex couples
were similarly situated to opposite-sex couples with respect to those
attributes that make marriage fundamental. This is an equal protection
concern.
City of Cleburne v. Cleburne Living Center32 is often quoted for this
core understanding of equal protection: “The Equal Protection Clause of
the Fourteenth Amendment commands that no State shall ‘deny to any
person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated
alike.”33 Yet in the decades of fixation on tiers of scrutiny, suspect
32
473 U.S. 432 (1985).
33
City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). And indeed,
that case modeled the analysis Justice Kennedy performed in Obergefell. There, Justice
White examined the constitutionality of a city council decision that excluded a group of
individuals with cognitive disabilities from group housing. The council had made the
decision based largely on the community’s expressions of fear and prejudice toward those
with cognitive disabilities. Id. at 450. Justice White revealed the arbitrariness of this
decision by demonstrating that those with cognitive disabilities were similarly situated to
others who might seek to access group housing. Id. at 476.
13
classification analysis, and means-ends scrutiny of discriminatory laws,
the focus on whether groups are “similarly situated” has been lost.34
Justice Kennedy’s opinion in Obergefell revives that concept and, in
so doing, sets a path for the future.
34
The similarly situated inquiry is not unrelated to Kennedy’s animus jurisprudence—it
is, in fact, the strongest manifestation of what the doctrine of unconstitutional animus has
to offer. See Susannah W. Pollvogt, Unconstitutional Animus, 81 Fordham L. Rev. 887,
927 (2012) (“In Cleburne, there was no affirmative connection between the trait of
cognitive disability and either (1) the plaintiffs’ entitlement to generally available group
housing, or (2) the government’s interest in regulating group housing. In the absence of
this type of logical connection, animus may be inferred.”).
14