TOWARD “LIBERTY”: HOW THE MARRIAGE OF
SUBSTANTIVE DUE PROCESS AND EQUAL
PROTECTION IN LAWRENCE AND WINDSOR
SETS THE STAGE FOR THE INEVITABLE
LOVING OF OUR TIME
Daniel J. Crooks III *
“[T]he watchwords in the future should be the equal
liberty of all, a reflection and outgrowth of the combination of
due process and equal protection that drove the Court’s
decision in Lawrence.”1
I. INTRODUCTION .................................................................... 224
II. THE COURT’S TRADITIONAL SUBSTANTIVE DUE
PROCESS JURISPRUDENCE AND WHY JUSTICE
KENNEDY’S CONCEPT OF LIBERTY MATTERS ........ 228
A. The Court’s Substantive Due Process Jurisprudence .. 229
1. Lockean Foundations: Police Power v. Autonomy.. 234
2. The Birth and Death of the Lochner Monster ........ 242
B. Justice Kennedy’s Concept of Liberty And Why It
Matters ........................................................................ 245
III. LIBERTY AFTER LAWRENCE ........................................... 251
IV. UNDERSTANDING WINDSOR ........................................... 259
A. DOMA: A Primer .......................................................... 259
B. When Edith Met Thea .................................................. 262
C. Parsing The Opinion ..................................................... 264
D. Windsor is a Liberty Case............................................. 272
* LL.M. in Law and Government, American University Washington College of
Law, 2012; J.D., cum laude, Charleston School of Law, 2011. I would like to
thank my dear friend and confidante Hal S. Robinson for his constructive
feedback and helpful suggestions during the editing of this article. I also would
like to thank the Charleston Law Review Volume VIII’s eminently capable and
exceedingly professional staff.
1. Laurence H. Tribe, Essay, Lawrence v. Texas: The “Fundamental
Right” That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1945 (2004)
[hereinafter Tribe, Fundamental Right].
223
CHARLESTON LAW REVIEW
[Volume 8
V. WHY LIBERTY MATTERS FOR THE LOVING OF OUR
TIME .................................................................................. 277
VI. CONCLUSION ...................................................................... 285
I. INTRODUCTION
On June 26, 2013, the Supreme Court handed down opinions
in two blockbuster cases that centered on the constitutionality of
two different laws, one state and one federal, affecting the ability
of same-sex couples to reap the benefits of civil marriage. The
first, Hollingsworth v. Perry,2 was a narrow victory for same-sex
marriage proponents, and a predictable one to the extent that the
Court punted on the substantive constitutional issues in favor of
attacking the plaintiffs’ standing.3 The second, United States v.
Windsor,4 was a triumph. Although prominent legal scholars
predicted the result, even top minds seemed taken off-guard by
the majority opinion authored by Justice Kennedy.5 Reasonable
minds disagree over what exact legal basis or bases Justice
Kennedy employed to arrive at the result in Windsor, with some
2. 570 U.S. ___, 133 S. Ct. 2652 (2013).
3. See Larry Tribe, DOMA, Prop 8, and Justice Scalia’s intemperate
dissent, SCOTUSBLOG (Jun. 26, 2013, 2:24 PM), http://www.scotusblog.com/
2013/06/doma-prop-8-and-justice-scalias-intemperate-dissent [hereinafter Tribe,
SCOTUSblog] (“Today’s decisions striking down the key provision of DOMA and
dismissing for want of standing the appeal from the district court’s invalidation
of California’s Prop 8 were not at all surprising. Many of us predicted both
outcomes . . . .”). The consequence of the Court’s vacation of the Ninth Circuit’s
opinion was that the injunction entered by the district court remains in effect.
See Perry v. Brown, No. 10-16696 (9th Cir. June 28, 2013), available at
http://cdph.ca.gov/Documents/13-16_9th_Circuit_Order06282013.pdf
(lifting
stay); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (N.D. Cal. 2010)
(enjoining enforcement of Proposition 8).
4. 570 U.S. ___, 133 S. Ct. 2675 (2013).
5. See, e.g., Tribe, SCOTUSBLOG, supra note 3 (“[T]here were some who
imagined that Justice Kennedy would rely even more heavily on a federalism
rationale than he ended up doing.”); Randy Barnett, Federalism marries liberty
in the DOMA decision, SCOTUSBLOG (Jun. 26, 2013, 3:37 PM), http://www.
scotusblog.com/2013/06/federalism-marries-liberty-in-the-doma-decision (“What
makes this form of reasoning novel is that a state’s exercise of its police powers
to identify a right has not previously been used to justify heightened Due
Process or Equal Protection clause scrutiny . . . .”).
224
2013—2014]
Toward “Liberty”
law professors declaring the Windsor opinion to be a clarification
of “rational basis with bite”;6 others focused more on Justice
Kennedy’s employment of federalism principles;7 and still others
convinced that, without explicitly saying as much, Justice
Kennedy relied most heavily on substantive due process
arguments.8
It is this author’s contention, buttressed in part by the
Windsor Court’s Lawrence9-like discussion of “liberty” and in part
by Justice Kennedy’s own concept of liberty, that Windsor is
neither an equal protection nor a substantive due process case,
but is instead a “liberty” case belonging to a category of cases
where the Court has intertwined both theories to create what
Professor Tribe refers to as a “legal double helix.”10 This hybrid
6. UVA Law Professors Analyze Supreme Court’s Same-Sex Marriage
Rulings, U. VA. SCH. OF L. (June 26, 2013), http://www.law.virginia.edu/html/
news/2013_sum/scotus_doma.htm
[hereinafter
UVA
Law
Professors]
(commentary of Professor Kerry Abrams) (“This seems to be a clarification of
the ‘rational basis with bite’ analysis that Kennedy applied in Romer v. Evans
and Lawrence v. Texas.”); Ruthann Robson, Court Decides Same Sex Marriage
Cases: DOMA (Windsor) and Proposition 8 (Perry), CONST. L. PROF BLOG (June
26, 2013, 9:24 PM), http://lawprofessors.typepad.com/conlaw/2013/06/courtdecides-same-sex-marriage-cases-proposition-8-and-doma.html (“Importantly,
the decision . . . seems to apply to the ‘animus’ aspect of rational basis with
‘bite.’”); Mike Dorf, A Publicity Update and then Three Thoughts on Justice
Scalia’s Dissent in Windsor, DORF ON LAW (Sept. 9, 2013, 9:31 PM),
http://www.dorfonlaw.org/2013/06/a-publicity-update-and-then-three.html
(noting that “the Court has failed to specify the level of scrutiny it is applying as
a matter of equal protection doctrine (in Romer and Windsor) . . . .”).
7. UVA Law Professors, supra note 6 (commentary of Professor A.E. Dick
Howard) (“The key to understanding United States v. Windsor is to realize that
it rests on twin pillars—federalism and equal protection. Neither, by itself, in
my judgment, is sufficient to explain the result.”).
8. UVA Law Professors, supra note 6 (commentary of Professor Deborah
Hellman) (“[T]he court [sic] finds that the law violates the due process clause of
the Fifth Amendment, which has long been understood to include an equal
protection component.”).
9. Lawrence v. Texas, 539 U.S. 558 (2002).
10. See Tribe, Fundamental Right, supra note 1, at 1898 (“It is a narrative
in which due process and equal protection, far from having separate missions
and entailing different inquiries, are profoundly interlocked in a legal double
helix.”); see also Lawrence v. Texas, 539 U.S. 558, 575 (2002) (“Equality of
treatment and the due process right to demand respect for conduct protected by
the substantive guarantee of liberty are linked in important respects, and a
decision on the latter point advances both interests.”); cf. Windsor, 570 U.S. at
225
CHARLESTON LAW REVIEW
[Volume 8
theory is not new.11 The theory focuses on “liberty” within the
context of who, as between the state or individual, will control a
personal relationship12 and marks the judiciary’s shift in focus
“from group-based civil rights to universal human rights.”13 Even
the Court itself, on more than a few occasions, has declined to
abide by the traditional distinctions “between the equality claims
made under the equal protection guarantees and the liberty
claims made under the due process or other guarantees.”14 In
Windsor, like in Lawrence, the Court once again spoke of “liberty”
and cited precedents from both its equal protection and
substantive due process jurisprudence.15
This Article has two objectives: first, to demonstrate that
Windsor is best understood as a Lawrence-brand “liberty” case
distinct from the Court’s traditional equal protection and
traditional substantive due process precedents; second, to argue
that the focus on liberty in Lawrence and Windsor leaves little
doubt as to how the current Court would decide the ultimate
___, 133 S. Ct. at 2695 (“While the Fifth Amendment itself withdraws from
Government the power to degrade or demean in the way this law does, the
equal protection guarantee of the Fourteenth Amendment makes that Fifth
Amendment right all the more specific and all the better understood and
preserved.”).
11. See, e.g., Rebecca L. Brown, Liberty, the New Equality, 77 N.Y.U. L.
REV. 1491, 1541 (2002); William N. Eskridge, Jr., Destabilizing Due Process and
Evolutive Equal Protection, 47 UCLA L. REV. 1183, 1216 (2000); Kenneth L.
Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55
UCLA L. REV. 99, 106 (2007); Reva B. Siegel, Dignity and the Politics of
Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694,
1696 (2008); Tribe, Fundamental Right, supra note 1, at 1897–98; Kenji
Yoshino, The New Equal Protection, 124 HARV. L. REV. 747 (2011).
12. Tribe, Fundamental Right, supra note 1, at 1935 (“Indeed, Lawrence is
likely to endure in large part because it highlights the futility of describing
liberty in so one-dimensional a manner. The Court left no doubt about its
understanding of the fundamental claim to ‘liberty’ being advanced in Lawrence
and in Bowers alike: at stake in both cases were claims that a state may not
undertake to ‘control a personal relationship’ in the way that Georgia had in
Bowers and Texas had in Lawrence.”); see also Yoshino, supra note 11, at 779
(“It is no accident, then, that Tribe used this case as his starting point to
discuss the ‘double helix’ of liberty and equality as a dignity-based claim. In my
terms, Lawrence formulated a liberty-based dignity claim.”).
13. Yoshino, supra note 11, at 803.
14. Id. at 749.
15. Windsor, 570 U.S. at ___, 133 S. Ct. at 2695.
226
2013—2014]
Toward “Liberty”
question of whether state laws proscribing same-sex marriage
violate the Constitution. To accomplish these twin objectives, this
Article is organized into four parts.
Part II begins by addressing the theory of substantive due
process and continues by focusing on Justice Kennedy’s concept
of liberty. Within this section, Part II.A provides an abbreviated
history of the Court’s substantive due process jurisprudence in
an effort to elucidate how the theory of substantive due process
developed as a logical result of the constitutionally enshrined
natural law concept of liberty, which concerns itself with
demarcating the boundaries between an individual’s sphere of
autonomy and the government’s police powers. Part II.B explores
Justice Kennedy’s view of liberty and argues that his natural
law-based, Lockean conception of liberty explains his libertyrooted opinions in Casey,16 Lawrence, and Windsor. Part III
explains how Justice Kennedy’s understanding of liberty
influenced the Lawrence Court’s opinion and why its focus on
liberty marks the continuance of a distinct line of jurisprudence
that began in Casey and explains the Windsor Court’s reliance on
liberty.
The second half of the Article focuses on Windsor and the
implications of the Court’s reliance on liberty for a case involving
the constitutionality of states’ same-sex marriage bans.
Generally, Part IV addresses the background leading up to and
culminating in Windsor. Part IV.A provides a brief explanation
of the Defense of Marriage Act (DOMA),17 while Part IV.B
includes a summary of the case’s factual and procedural
background. Part IV.C parses the opinion and includes a
summary and synthesis of the majority’s analysis in order to
better understand how the Court arrived at its holding. Part
IV.D concludes this section by arguing that Windsor is a liberty
case instead of either a traditional due process case or traditional
equal protection case. Finally, Part V proposes that the liberty-
16. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)
(plurality opinion).
17. Defense of Marriage Act, Pub. L. No. 104–199, § 3(a), 110 Stat. 2419,
2419 (1996) (codified at 1 U.S.C. § 7 (2006)), available at http://www.gpo.gov/
fdsys/pkg/PLAW-104publ199/pdf/PLAW-104publ199.pdf.
227
CHARLESTON LAW REVIEW
[Volume 8
centered analysis applied in Lawrence and Windsor increases the
likelihood that the Court, at least as currently composed, will
employ a similar analysis in a future case addressing the
constitutionality of state same-sex marriage bans. This Article
concludes with the proposition that Lawrence and Windsor set
the doctrinal stage for what will undoubtedly become known as
the Loving v. Virginia18 of our time.
II. THE COURT’S TRADITIONAL SUBSTANTIVE DUE
PROCESS JURISPRUDENCE AND WHY JUSTICE
KENNEDY’S CONCEPT OF LIBERTY MATTERS
A liberty case is one in which the Court borrows from either
or both substantive due process and equal protection principles to
decide whether a law improperly intrudes upon the sphere of
autonomy belonging to every citizen and containing within it
life’s most intimate decisions, actions, and relationships.19
Although the Court has engaged in this hybrid liberty analysis
on a number of occasions, the equal protection-substantive due
process theory existed in a somewhat clandestine, amorphous
shape prior to Lawrence and, more important, prior to Professor
Tribe’s coining of the “legal double helix” analogy to give form
and a conceptual framework to what the Court did.20 And
although liberty cases21 combine substantive due process and
equal protection, it is the former upon which the Lawrence Court
primarily relied (at least explicitly) and which, in turn, deserves
brief mention in order to provide the necessary background for
the Lawrence Court’s shift22 in emphasis from “privacy”23 and
18.
19.
20.
21.
388 U.S. 1 (1967).
Tribe, Fundamental Right, supra note 1, at 1898.
Id. at 1896–97.
“Liberty” cases involve what Professor Tribe calls the “legal double
helix” theory. Id. at 1898.
22. In Casey, for better or worse, the plurality framed the issue of a
woman’s right to elect an abortion as a “protected liberty interest, not the right
of privacy.” Daniel O. Conkle, Three Theories of Substantive Due Process, 85
N.C. L. REV. 63, 74 (2006). Casey was the first case to broaden the discussion
from “privacy” to those “choices central to personal dignity and autonomy.”
Casey, 505 U.S. at 851; accord Tribe, Fundamental Right, supra note 1, at 1917
n.84 (noting Casey’s shift in focus to dignity and autonomy).
228
2013—2014]
Toward “Liberty”
“deeply rooted traditions”24 to “liberty.”25
A. The Court’s Substantive Due Process Jurisprudence
No single topic in constitutional law has sparked more
controversy than substantive due process.26 The Court’s
substantive due process jurisprudence is esoteric and yet equally
incomprehensible to even the keenest minds in the legal
academy.27 Part of the dilemma stems from the fact that the
Court has never once offered a definition of substantive due
process.28 Tomes have been penned on the topic, and the theory
seems to provide endless fodder for legal scholars, practitioners,
and judges alike.29 Recently, Professor Heather Gerken explained
the reason for the theory’s many critics (and perhaps a fortiori for
the theory’s quixotic admirers)30:
23. Cf. Nathan S. Chapman & Michael W. McConnell, Due Process as
Separation of Powers 108 (Stan. Pub. Law Working Paper No. 2005406, 2012),
available
at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2005406
(noting that beginning with Casey and continuing with force in Lawrence, “the
Court abandoned the ‘privacy’ rubric of Griswold and Roe, and returned to the
authentic language of the Fourteenth Amendment . . . “).
24. See id. at 107 (referring to the post-Casey but pre-Lawrence case of
Glucksberg and its “tradition-based analysis” as the “one step back in the course
of two steps” forward).
25. Tribe, Fundamental Right, supra note 1, at 1896–97 (“[M]ore than
anything else, Lawrence is a story of what ‘substantive due process,’ that
stubborn old oxymoron, has meant in American life and law.”).
26. Conkle, supra note 22, at 64.
27. See Erwin Chemerinsky, Substantive Due Process, 15 TOURO L. REV.
1501, 1501 (1999) (“There is no concept in American law that is more elusive or
more controversial than substantive due process.”); Conkle, supra note 22, at 64
(“Nothing in constitutional law is more controversial than substantive due
process.”).
28. See Chemerinsky, supra note 27, at 1501 (“[I]f you look through
Supreme Court opinions you will never find a definition.”).
29. See, e.g., Chapman & McConnell, supra note 23, at 4–9 & nn.1–14. For
a comprehensive historical overview of the Due Process Clauses of the Fifth
Amendment, see generally Frederick Mark Gedicks, An Originalist Defense of
Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the
Fifth Amendment, 58 EMORY L.J. 585 (2009). For a comprehensive historical
overview of the Due Process Clause of the Fourteenth Amendment, see Ryan C.
Williams, The One and Only Substantive Due Process Clause, 120 YALE L.J.
408, 460–499 (2010).
30. Many of whom have toiled away in attempts to present their case for
229
CHARLESTON LAW REVIEW
[Volume 8
It is reviled for its lack of precision, the difficulties involved in
moving from principle to application. Yet it fits with a deeply
intuitive sense that some parts of our lives must be beyond the
state’s reach, an idea that is difficult to encase in anything but
vague generalities. Substantive due process is a topic better
suited for religious scholars or philosophers than pragmatic
lawyers. 31
Admittedly, it is upsetting to lawyers to have such an
important constitutional tool at our disposal only to find out that
the directions as to its use are not included, or, if they are
included at all, read more like an excerpt from Walden32 than a
product of common law judging.33 Also, while it may be divertive
to ponder transcendental34 constitutional theory and wax
philosophical about the meaning of “liberty,”35 boots-on-theground lawyers and judges require more than a restatement of
what the theory is, where it came from, and how to use it properly. See, e.g.,
Timothy Sandefur, In Defense of Substantive Due Process, or the Promise of
Lawful Rule, 35 HARV. J.L. & PUB. POL’Y 283, 284–85 (2012) (footnote omitted)
(“Although there have been several excellent explanations and defenses of the
doctrine—especially from a historical basis, showing that the idea was well
known when the Constitution was ratified and at the time the Fourteenth
Amendment was enacted—there remains a need for a conceptual explanation,
and this Article seeks to fulfill that need.”). Professor Tribe has contributed
prolifically to the scholarship on substantive due process, equal protection, and
liberty. See generally, e.g., Tribe, Fundamental Right, supra note 1.
31. Heather K. Gerken, Larry and Lawrence, 42 TULSA L. REV. 843, 849
(2007).
32. HENRY DAVID THOREAU, WALDEN (Oxford Univ. Press 1997) (1854).
33. Cf. Gerken, supra note 31, at 847 (criticizing Lawrence v. Texas, a
substantive due process case, and commenting that “Justice Kennedy’s
penchant for abstraction conceals some analytic slippage that would have been
evident had the opinion been written in the finest tradition of common law
judging.”).
34. Lawrence v. Texas, 539 U.S. 558, 562 (2003) (“The instant case
involves liberty of the person both in its spatial and in its more transcendent
dimensions.”).
35. Liberty is a key value central to a due process inquiry in Lawrence and
Windsor. Compare Lawrence, 539 U.S. at 562 (“Liberty presumes an autonomy
of self that includes freedom of thought, belief, expression, and certain intimate
conduct.”), with United States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675,
2695 (2013) (“This requires the Court to hold, as it now does, that DOMA is
unconstitutional as a deprivation of the liberty of the person protected by the
Fifth Amendment of the Constitution.”).
230
2013—2014]
Toward “Liberty”
Justice Stewart’s “I know it when I see it” standard36 to
successfully advocate for their clients.37 Professor Eric Posner
pointedly captured this frustration when, referring to the Casey
plurality’s38 “concept of existence, of meaning, of the universe,
and of the mystery of human life”39 passage, in Scalia-like
prose,40 he concluded that such “vacuous New Age rhetoric turns
off people who expect explanations when the judiciary overrules
the legislative branch.”41
Yet, the very nature of the theory of substantive due process
admits of no black letter definition or neat set of data points on a
linear plane.42 As (the second) Justice Harlan eloquently stated
36. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
37. Id. Professor Gerken, commenting on Professor Tribe’s position that
the same-sex marriage debate is best viewed in the context of substantive due
process, emphasized the importance of remembering that “the practice of law
generally works at a lower range than the academy . . . .” Gerken, supra note
31, at 845. She continues:
Lawyers are always on the hunt for conceptual tools—canons of
construction, legislative history, past precedent—that will narrow
down the range of possibilities and give shape to a question. It is easy
to see why. Anyone who has thought about the problem of statutory
construction or constitutional interpretation knows how difficult it is
to move from broad, abstract principles to a decision in a specific case.
Id.
38. The Casey plurality, at least the parts addressing “liberty,” can be
attributed to Justice Kennedy. Randy E. Barnett, Justice Kennedy’s Libertarian
Revolution: Lawrence v. Texas, 2003 CATO S. CT. REV. 21, 33 (2003) [hereinafter
Barnett, Libertarian Revolution].
39. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)
(plurality).
40. Justice Scalia famously blasted the Casey plurality’s invocation of
broad, feel-good language by mockingly referring to this “famed sweet-mysteryof-life passage” as “the passage that ate the rule of law.” See Lawrence v. Texas,
539 U.S. 558, 588 (2003) (Scalia, J., dissenting); see also Lincoln Caplan, Forget
the Tone. It’s Dissent That Matters, WASH. POST (July 6, 2003), available at
http://www.law.yale.edu/news/4615.htm. For an interesting article on Justice
Scalia and his prose style, see Yury Kapgan, Of Golf and Ghouls: The Prose
Style of Justice Scalia, 9 J. LEGAL WRITING INST. 72 (2003), available at
http://www.law2.byu.edu/Law_Library/jlwi/archives/2003/kap.pdf.
41. Eric A. Posner, The Decider, THE NEW REPUBLIC (Jan. 11, 2010),
http://www.newrepublic.com/book/review/the-decider (reviewing FRANK J.
COLUCCI, JUSTICE KENNEDY’S JURISPRUDENCE: THE FULL AND NECESSARY
MEANING OF LIBERTY (2009)).
42. Professor Tribe is perhaps the most notable legal theorist who eschews
231
CHARLESTON LAW REVIEW
[Volume 8
in his opinion in Poe v. Ullman:43
[T]he full scope of the liberty guaranteed by the Due Process
Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution.
This “liberty” is not a series of isolated points pricked out in
terms of the taking of property; the freedom of speech, press,
and religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures; and so on. It is a rational
continuum which, broadly speaking, includes a freedom from
all substantial arbitrary impositions and purposeless
restraints, and which also recognizes, what a reasonable and
sensitive judgment must, that certain interests require
particularly careful scrutiny of the state needs asserted to
justify their abridgment.44
the “data points”-based, sum-of-its-parts approach to substantive due process
applied by the Court in Bowers in 1986, then in Glucksberg in 1997, and then
abruptly jettisoned by the Court a mere six years later in Lawrence. See Tribe,
Fundamental Right, supra note 1, at 1937.
Count them, if you will: one data point for the right to become a
parent (Skinner); several more points marking the rights of parents to
direct the upbringing of their children (Meyer, Pierce, Troxel); a pair of
points for the right to keep one’s children safe from the distractions
and temptations of a too-diverse world, coupled with a right either to
inculcate one’s religion (Yoder) or to transmit one’s views of morality
(Boy Scouts); yet another point for the rights of married couples to
have sexual intercourse without risking pregnancy and parenthood
(Griswold); another pair for the rights of individuals (married or
unmarried) not to risk unwanted pregnancy or sexually transmitted
disease as penalties inflicted (without trial!) for breaking the state’s
codes of sexual conduct (Eisenstadt, Carey); two points more to mark
the rights of pregnant women to end their pregnancies (Roe, Casey) or,
if they wish, to continue their pregnancies to term (Casey); and three
last points celebrating the rights of straight couples to marry without
restrictions based on race (Loving), poverty (Zablocki), or
imprisonment (Turner). So many points, so many disconnected dots!
Id. Professor Tribe is highly critical of those who search for the true meaning of
substantive due process’s key “liberty” component by “collect[ing] and
categoriz[ing] . . . so many discrete data points rather than searching for and
constructing a regression line that satisfyingly explains the relationship of the
points to one another and to liberty as a whole.” Id.
43. 367 U.S. 497 (1961).
44. Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting from
dismissal on jurisdictional grounds). Professor Tribe refers to the tendency to
reduce substantive due process to a scavenger hunt through history and the
232
2013—2014]
Toward “Liberty”
The Court itself still grapples with the theory, in large part
because the Justices themselves hold differing views on the
topic.45
Constitution’s text as the “‘Trivial Pursuit’ version of due process.” Tribe,
Fundamental Right, supra note 1, at 1936.
Lawrence’s focus on the role of self-regulating relationships in
American liberty suggests that the “Trivial Pursuit” version of the due
process “name that liberty” game arguably validated by Glucksberg
has finally given way to a focus on the underlying pattern of selfgovernment (rather than of state micromanagement) defined by the
rights enumerated or implicit in the Constitution or recognized by the
landmark decisions construing it.
Id.
45. Compare, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___, ___,
132 S. Ct. 2566, 2623 n.8 (2012) (Ginsburg, J., dissenting) (accepting that due
process contains a substantive component and citing to McDonald v. City of
Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3062 (2010) (Thomas, J., concurring)
and to Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring) to
illustrate some Justices’ “reluctance to interpret the Due Process Clause as
guaranteeing liberty interests”), McDonald v. City of Chicago, 561 U.S. ___,
____, 130 S. Ct. 3020, 3090 (2010) (Stevens, J., dissenting) (“The first, and most
basic, principle established by our cases is that the rights protected by the Due
Process Clause are not merely procedural in nature. At first glance, this
proposition might seem surprising, given that the Clause refers to ‘process.’ But
substance and procedure are often deeply entwined.”), Dist. Attorney’s Office for
the 3rd Jud. Dist. v. Osborne, 557 U.S. 52, 104 (2009) (Souter, J., dissenting)
(“Substantive due process expresses the conception that the liberty it protects is
a freedom from arbitrary government action, from restraints lacking any
reasonable justification . . . .”), and Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, 846 (1992) (plurality opinion) (“Although a literal reading of the
[Fourteenth Amendment Due Process] Clause might suggest that it governs
only the procedures by which a State may deprive persons of liberty, for at least
105 years, . . . the Clause has been understood to contain a substantive
component as well . . . .”), with Turner v. Rogers, 564 U.S. ___, ___, 131 S. Ct.
2507, 2522 (2011) (Thomas, J., dissenting) (quoting Albright v. Oliver, 510 U.S.
266, 273 (1994) (plurality opinion) to emphasize that substantive due process is
not implicated when a particular Amendment to the Constitution “provides an
explicit textual source of constitutional protection against a particular sort of
government behavior”), Stop the Beach Renourishment, Inc. v. Fla. Dep’t of
Envtl. Prot., 560 U.S. ___, ___, 130 S. Ct. 2592, 2608 (2010) (plurality opinion)
(opinion of Scalia, J., joined by Roberts, C.J., and Thomas and Alito, JJ.) (“The
great attraction of Substantive Due Process as a substitute for more specific
constitutional guarantees is that it never means never—because it never means
anything precise.”), and BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 598–99
(1996) (Scalia, J., dissenting) (“I do not regard the Fourteenth Amendment’s
Due Process Clause as a secret repository of substantive guarantees against
‘unfairness’. . . .”). For more information on some of the Roberts Court (current
and former) Justices’ views on substantive due process, see generally John F.
233
CHARLESTON LAW REVIEW
[Volume 8
This is all well and good, but the crucial questions remain
unanswered: What is substantive due process? When does it
apply? If it does apply, which line of cases does one apply: the
“deeply rooted in this Nation’s history and tradition”46 test used
in Glucksberg or the “liberty”47 test applied in Lawrence?
Searching for black-letter answers to these questions is an
exercise in futility best left to those who approach the study of
constitutional law as they would calculus. Instead, the best way
to find answers to these questions is to understand the nature of
the questions themselves and to grasp the theory’s tumultuous
history from 188748 to 2013.49
1. Lockean Foundations: Police Power v. Autonomy
Eighteen years before Lochner,50 (the first) Justice Harlan,
writing for the Court in the case of Mugler v. Kansas,51
eloquently captured the constitutional problem that inheres
when a state passes legislation that exceeds the outer-most
boundaries of its inherent police powers. The interest identified
by the Mugler Court is an individual’s right to retain his freedom
within the sphere of “rights secured by the fundamental law.”52
There are, of necessity, limits beyond which legislation cannot
rightfully go. While every possible presumption is to be
indulged in favor of the validity of a statute, the courts must
obey the Constitution rather than the law-making department
Basiak, Jr., The Roberts Court and the Future of Substantive Due Process: The
Demise of “Split-the-Difference” Jurisprudence?, (bepress Legal Series, Working
Paper No. 1767), available at http://law.bepress.com/cgi/viewcontent.cgi?article=
8358&context=expresso.
46. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Moore v.
E. Cleveland, 431 U.S. 494, 503 (plurality opinion) and citing Snyder v.
Massachusetts, 291 U.S. 97, 105 (1934)). Glucksberg was written by Chief
Justice Rehnquist. Id. at 704.
47. Lawrence v. Texas, 539 U.S. 558, 562 (2003) (“Liberty presumes an
autonomy of self that includes freedom of thought, belief, expression, and
certain intimate conduct.”).
48. Mugler v. Kansas, 123 U.S. 623 (1887).
49. United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013).
50. Lochner v. New York, 198 U.S. 45 (1905).
51. Mugler, 123 U.S. 623.
52. Id. at 661.
234
2013—2014]
Toward “Liberty”
of government, and must, upon their own responsibility,
determine whether, in any particular case, these limits have
been passed. “To what purpose,” it was said in Marbury v.
Madison, “are powers limited, and to what purpose is that
limitation committed to writing, if these limits may, at any
time, be passed by those intended to be restrained? . . . The
courts are not bound by mere forms, nor are they to be misled
by mere pretences. They are at liberty—indeed, are under a
solemn duty—to look at the substance of things, whenever they
enter upon the inquiry whether the legislature has
transcended the limits of its authority. If, therefore, a statute
purporting to have been enacted to protect the public health,
the public morals, or the public safety, has no real or
substantial relation to those objects, or is a palpable invasion of
rights secured by the fundamental law, it is the duty of the
courts to so adjudge, and thereby give effect to the
Constitution.53
Mugler is the case that, according to the Court in Casey,54
ushered in the oft-lambasted era of economic substantive due
process.55 The rule from Mugler’s dictum can be synthesized as
53. Id. (citations omitted).
54. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992)
(plurality) (stating that “for at least 105 years . . . the Clause has been
understood to contain a substantive component”).
55. Chapman & McConnell, supra note 23, at 109. The issue in Mugler v.
Kansas was whether a Kansas statute criminalizing the manufacture and sale
of intoxicating liquors violated the Due Process Clause of the Fourteenth
Amendment. Mugler, 123 U.S. at 657 (“The general question in each case is,
whether the foregoing statutes of Kansas are in conflict with that clause of the
Fourteenth Amendment, which provides that ‘no State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property
without due process of law.’”). In holding that the statute did not violate the
Fourteenth Amendment, the Court stated that it will find no violation of the
Fourteenth Amendment when a state exercises its sovereign police powers, so
long as the legislation drafted pursuant to those powers was “enacted in good
faith” and the resulting legislation “had appropriate and direct connection with
that protection to life, health, and property, which each State owes to her
citizens.” Id. at 666 (quoting Patterson v. Kentucky, 97 U.S. 501, 506 (1878)). To
clarify this rule, the Court proceeded to note that its “settled doctrines” make
clear one important caveat: that this police power extends only to protect the
health, safety, and physical property against a citizen’s “injurious exercise” of
his own rights. Id.
235
CHARLESTON LAW REVIEW
[Volume 8
such: In exercising its police powers, a state may pass good faith
legislation appropriate for and directed at an action by a citizen
or group of citizens, but only to the extent that the action sought
to be policed threatens to injure another citizen or group of
citizens by infringing on their right to be free from hazard, harm,
and public immoral conduct.56 Even more simply put: a state’s
police powers extend only to the passage of laws that protect its
citizens from infringing each other’s basic and most fundamental
rights.
To be clear, the Court is talking about boundaries, i.e., the
boundary between an individual’s sphere of personal action and
decision making—or autonomy—and the state’s police powers.
Although shifting at points, the boundary has absolute outer
limits beyond which neither party may cross.57 This line of
56. Id. The Mugler Court’s analysis cannot be overemphasized, for the
analysis regarding the reach of a state’s ability to police morality is not plenary
and depends, instead, upon the question of whether the act that is the subject of
the police powers actually interferes in a tangible way with the rights of other
citizens such that their right to be free from harm is somehow threatened. See
JOHN STUART MILL, ON LIBERTY 29 (2d ed., Ticknor & Fields 1863) (1859)
(stating that government should not use its police powers to proscribe an
individual’s actions “so long as what we do does not harm [others], even though
they should think our conduct foolish, perverse, or wrong”).
57. See Mugler, 123 U.S. at 663 (“Undoubtedly the state, when providing,
by legislation, for the protection of the public health, the public morals, or the
public safety, is subject to the paramount authority of the Constitution of the
United States, and may not violate rights secured or guaranteed by that
instrument . . . .”). In Lockean terms, the boundary’s creation was effected by
man’s entering into the social contract, the terms of which include his
relinquishment of certain natural rights to a government in exchange for the
government’s agreement to protect other rights he does not relinquish and
which properly remain the government’s purview so long as the realization of
those rights do not harm others to whom the general government owes the
same duty of protection. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT
(1690):
But though men, when they enter into society, give up the equality,
liberty, and executive power they had in the state of nature, into the
hands of the society, to be so far disposed of by the legislative, as the
good of the society shall require; yet it being only with an intention in
every one the better to preserve himself, his liberty and property; (for
no rational creature can be supposed to change his condition with an
intention to be worse) the power of the society, or legislative
constituted by them, can never be supposed to extend farther than the
common good . . . .
236
2013—2014]
Toward “Liberty”
reasoning, Lockean in nature and also inspired by John Stuart
Mill’s “harm to others”58 requirement for legitimate state action,
was adopted and expanded upon by Thomas M. Cooley59 in his
Treatise on the Constitutional Limitations Which Rest Upon the
Legislative Power of the States of the American Union.60
Significantly, the treatise came out in 1868,61 the same year of
the Fourteenth Amendment’s ratification. Cooley’s work was the
best-known legal treatise of the late nineteenth century and
would have been familiar to the Justices of the Mugler Court.62
Id. at 298–99.
58. Cass R. Sunstein, Liberty After Lawrence, 65 OHIO ST. L.J. 1059, 1074
(2004) (characterizing the “autonomy” consideration in Lawrence as a narrow
version of Mill’s idea, expressed in On Liberty, that government must first
demonstrate that the particular act it wishes to proscribe harms others; if it
cannot, then the state lacks the power to legislate against such act); see MILL,
supra note 56, at 28:
But there is a sphere of action in which society, . . . has, if any, only an
indirect interest; comprehending all that portion of a person’s life and
conduct which affects only himself, or if it also affects others, only
with their free, voluntary, and undeceived consent and participation.
[T]he appropriate region of human liberty . . . . comprises, first, the
inward domain of consciousness; demanding liberty of conscience, in
the most comprehensive sense; liberty of thought and feeling; absolute
freedom of opinion and sentiment on all subjects . . . .
[This] principle requires liberty of tastes and pursuits; of framing the
plan of our life to suit our own character; of doing as we like subject to
such consequences as may follow: without impediment from our
fellow-creatures, so long as what we do does not harm them, even
though they should think our conduct foolish, perverse, or wrong.
Id. (emphasis added).
59. Thomas M. Cooley was a justice and then the Chief Justice of the
Supreme Court of Michigan. Widely known and read by lawyers and judges
alike during the latter half of the Nineteenth Century, Cooley’s treatise
significantly influenced the jurisprudence of the day—and would have been
readily known to Justice Harlan when, nineteen years later, he authored
Mugler. See infra note 63.
60. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS
WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN
UNION (1866).
61. Randy E. Barnett, The Proper Scope of the Police Power, 79 NOTRE
DAME L. REV. 429, 479 (2004) [hereinafter Barnett, Police Power] (citing
COOLEY, supra note 60).
62. Thomas M. Cooley, MICH. L., http://www.law.umich.edu/historyand
traditions/faculty/Faculty_Lists/Alpha_Faculty/Pages/Cooley_ThomasM.aspx
237
CHARLESTON LAW REVIEW
[Volume 8
Following in the natural law tradition63 of John Locke and
the vast majority of the framers of the Constitution and Bill of
Rights,64 as well as the framers of the Fourteenth Amendment,65
Cooley understood the concept of “due process of law” to entail a
substantive component that existed to provide a check on the
states’ police powers.66 To Cooley, this substantive nature
safeguarded individuals’ natural rights from unwarranted
intrusion by the state.67 As stated by Barnett:
[T]he Lockean theory of the police power adopted by Cooley
and others to identify when states violate the injunctions of the
Fourteenth Amendment is generally consistent with the
(last visited Oct. 28, 2013).
63. Whether Cooley was, in fact, a natural-law jurist is debatable. Cooley
himself, writing in his edition of Blackstone’s Commentaries stated that “the
law of God [established] immutable principles of right and justice.” Thomas M.
Cooley, Suggestions Concerning the Study of Law, in WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND at v, x (Thomas M. Cooley ed.)
(Callaghan, 3d rev. ed. 1884). However, Stephen A. Siegel and Alan Jones deny
Cooley was a natural-law jurist. See Stephen A. Siegel, Historism in Late
Nineteenth-Century Constitutional Thought, 1990 WIS. L. REV. 1431, 1515
(1990) (“Cooley would have . . . denied that he was a natural-law jurist.”); Alan
Jones, Thomas M. Cooley and “Laissez-Faire Constitutionalism”: A
Reconsideration, 53 J. AM. HIST. 751, 763 (1967) (noting that Cooley “cannot be
classified as a defender of a doctrine of natural rights.”). However, whether he
was a natural-law jurist does not answer the question of whether aspects of his
theories were influenced, at least in part, by Locke and others. Professor Randy
Barnett considers Cooley’s concept of police powers to be Lockean in nature. See
Barnett, Police Power, supra note 61, at 479–80.
64. See, e.g., Robert P. George, Natural Law, the Constitution, and the
Theory and Practice of Judicial Review, 69 FORDHAM L. REV. 2269, 2269 (2001)
(“Most modern commentators agree that the American founders were firm
believers in natural law and sought to craft a constitution that would conform
to its requirements, as they understood them, and embody its basic principles
for the design of a just political order.”).
65. See, e.g., Douglas G. Smith, Natural Law, Article IV, and Section One
of the Fourteenth Amendment, 47 AM. U. L. REV. 351, 360–62 (1997) (explaining
how the framers of the Fourteenth Amendment’s Privileges and Immunities
Clause were influenced by natural law principles).
66. See Thomas M. Cooley, MICH. L., http://www.law.umich.edu/history
andtraditions/faculty/Faculty_Lists/Alpha_Faculty/Pages/Cooley_ThomasM.
aspx (last visited Oct. 28, 2013) (“For Cooley, due process meant that the
powers of government must be exercised in accord with the ‘settled maxims’ of
the common law, especially its safeguards for the protection of individual
rights.”).
67. Id.
238
2013—2014]
Toward “Liberty”
conception of natural rights to which the framers of the
Constitution and Fourteenth Amendment adhered. (And it
would need to be so to avoid violating this amendment.)
Natural rights define the boundary or space within which
people are at liberty to do as they please, provided their actions
do not interfere with the rightful actions of others operating
within their own boundaries or spaces. Just as it is proper to
prohibit wrongful or rights-violating conduct, proper police
power regulations specify the manner in which persons may
exercise their liberties so as to prevent them from accidentally
interfering with the rights of others.68
Therefore, under the Lockean view, as restated by Cooley,
the overarching purpose of a state’s police powers69 is:
[T]o establish for the intercourse of citizen with citizen those
rules of good manners and good neighborhood which are
calculated to prevent a conflict of rights, and to insure to each
the uninterrupted enjoyment of his own, so far as is reasonably
consistent with a like enjoyment of rights by others. 70
Notwithstanding criticism that Cooley’s and other scholars’
and jurists’ motives for arriving at such an expansive view of due
process was more likely tied to their “laissez-faire” constitutional
theory focusing on economic rights,71 it is these theorists’
discussion of the scope of government’s police powers generally
that applies with force to a discussion of a non-economic view of
substantive due process. A contemporary of Cooley’s, Christopher
Tiedeman, viewed the substantive component of due process
68. Barnett, Police Power, supra note 61, at 484 (emphasis added).
69. For a comprehensive history of the origins of police powers, see
generally Santiago Legarre, The Historical Background of the Police Power, 9 U.
PA. J. CONST. L. 745 (2007).
70. Barnett, Police Power, supra note 61, at 479 (quoting COOLEY, supra
note 60, at 572). Indeed, the purpose of police powers, as Professor Barnett
notes, is to proactively prevent the type of actions that infringe on other
citizens’ rights and thereby trip the state’s powers of adjudication. See id. Thus,
a state exercises its sovereign powers for two separate yet interrelated
purposes: its police powers to prevent a citizen before any violation occurs and
its adjudicatory powers after a violation occurs. Id.
71. David N. Mayer, The Jurisprudence of Christopher G. Tiedeman: A
Study in the Failure of Laissez-Faire Constitutionalism, 55 MO. L. REV. 93, 95–
97 (1990).
239
CHARLESTON LAW REVIEW
[Volume 8
perhaps the most expansive of all, believing its function was to
safeguard unenumerated constitutional rights.72 Tiedeman
argued that the review of legislation “to prevent manifest
injustice and to assure legislative fidelity to the social contract”
was a role best left to the judiciary.73 Referring to a state’s police
powers in his Treatise on the Limitations of Police Power in the
United States, Tiedeman wrote:
[The police powers] cannot be called into play in order to save
one from the evil consequences of his own vices, for the
violation of a right by the action of another must exist or be
threatened, in order to justify the interference of law. It is true
that vice always carries in its train more or less damage to
others, but it is an indirect and remote consequence; it is more
incidental than consequential. At least it is so remote that very
many other causes co-operate to produce the result, and it is
difficult, if not impossible, to ascertain which is the controlling
and real cause.74
Echoing Cooley’s view that liberty extends only so far as an
individual’s actions do not trespass upon his fellow man’s rights,
Tiedeman noted that a man’s “liberty is controlled by the oft
quoted maxim, sic utere tuo, ut alienum non loedas.”75
Nearly forty years after Cooley first published his treatise,
twenty years after Tiedeman published his, and one year prior to
the Lochner decision, Ernst Freund published his treatise The
Police Power,76 which “became the American Progressive’s
counter to any conservative who invoked an older tradition of
‘constitutional limitations’ on American statebuilding.”77 Freund,
72. Id. at 97 (“This omission is especially surprising because Tiedeman was
the laissez-faire theorist who was most explicit in articulating a rationale for
the constitutional protection of unenumerated constitutional rights.”).
73. Paul D. Carrington, The Constitutional Law Scholarship of Thomas
McIntyre Cooley, 41 AM. J. LEGAL HIST. 368, 385 (1997).
74. CHRISTOPHER G. TIEDEMAN, A TREATISE ON THE LIMITATIONS OF POLICE
POWER IN THE UNITED STATES: CONSIDERED FROM BOTH A CIVIL AND CRIMINAL
STANDPOINT 150 (1886).
75. This Latin phrase translates to: “So use your own as not to injure
another’s property.” Id. at 67.
76. ERNST FREUND, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL
RIGHTS (1904).
77. Daniel R. Ernst, Ernst Freund, Felix Frankfurter and the American
240
2013—2014]
Toward “Liberty”
the scholar most associated with championing a broader view of a
state’s police powers,78 wrote at a time when states were swelling
their statutory codes79 with laws geared toward maintaining the
safety, health, and morality of a population. The population was
becoming more urban by the day and, as a result, living and
working in much closer quarters with their fellow men than they
were used to at any previous point in the nation’s history.80 The
ideological differences between Cooley and Freund can be
attributed at least in part to the period of American history in
which each of them lived and each man’s different life
experiences;81 after all, much of the American way changed
between the Fourteenth Amendment’s ratification and Freund’s
release of his treatise.82
Rechtsstaat: A Transatlantic Shipwreck, 1894-1932, 23 STUD. AM. POL. DEV.
171, 172 (2009), available at http://scholarship.law.georgetown.edu/cgi/
viewcontent.cgi?article=1017&context=facpub.
78. Barnett, Police Power, supra note 61, at 490.
79. James Wilford Garner, Book Review, 24 ANNALS AM. ACAD. POL. & SOC.
SCI. 140, 141 (1904) (reviewing ERNST FREUND, THE POLICE POWER, PUBLIC
POWER AND CONSTITUTIONAL RIGHTS (1904)) (“Comparatively few—almost none
in fact—of the thousands of statutes and decisions to which Professor Freund
makes reference have their origin previous to the Civil War. During the brief
period since then there has appeared an enormous volume of legislation and
judicial interpretation relating to the public health, safety, morals and the
various social and economic interests of society.”).
80. See LIBRARY OF CONG., Rise of Industrial America, 1876-1900: City Life
in the Late 19th Century, http://www.loc.gov/teachers/classroommaterials/
presentationsandactivities/presentations/timeline/riseind/city/ (last visited Oct.
28, 2013) (“Between 1880 and 1900, cities in the United States grew at a
dramatic rate. Owing most of their population growth to the expansion of
industry, U.S. cities grew by about 15 million people in the two decades before
1900. . . . A steady stream of people from rural America also migrated to the
cities during this period. Between 1880 and 1890, almost 40 percent of the
townships in the United States lost population because of migration.”).
81. Cooley lived 1824 to 1898 and published the first edition of his treatise
in 1868, years prior to the population explosion and great urban migration. In
contrast, Freund, who emigrated to the United States in the late 1880s, landed
quite literally in the middle of the urban boom, moving first to New York City
and then later to Chicago. See UNIV. OF CHICAGO LIBRARY, Guide to the Ernst
Freund Papers 1882-1934, http://www.lib.uchicago.edu/e/scrc/findingaids/view.
php?eadid=ICU.SPCL.FREUND (last visited Oct. 28, 2013).
82. See LIBRARY OF CONG., supra note 80 (“Industrial expansion and
population growth radically changed the face of the nation’s cities.”).
241
CHARLESTON LAW REVIEW
[Volume 8
2. The Birth and Death of the Lochner Monster83
While the seed Freund planted in 1904 began to germinate,
the Court’s 1897 decision in Allgeyer v. Louisiana had already
begun to spawn, with the Court’s 1905 Lochner decision
entrenching the creative, yet doctrinally unstable economic
substantive due process jurisprudence.84 According to the
Lochner Court, the safeguarding of “traditional economic liberty”
finds its constitutional basis in the “‘liberty’ of contract.”85
Believing it was the purview of the Court to determine which
general and prospective economic-focused laws exceeded the
constitutional limits of a state’s (or the federal government’s)
police powers, the Court invalidated hundreds of laws from 1905
until 1937. 86 However, in the 1937 case of West Coast Hotel Co.
v. Parrish,87 the Court overruled one of its most prized Lochnerera cases and effectively vanquished the dreaded Lochner
monster once and for all.88
83. I did not coin this clever phrase; it owes its genesis to Judge J. Skelly
Wright. See J. Skelly Wright, Judicial Review and the Equal Protection Clause,
15 HARV. C.R.-C.L. L. REV. 1, 16 (1980) (“It is well, however, to guard against
recreating the Lochner monster in new guise.”); accord Deborah K. McKnight,
Minnesota Rational Relation Test: The Lochner Monster in the 10,000 Lakes, 10
WM. MITCHELL L. REV. 709, 709 n.1 (1984) (crediting Judge Wright with the
phrase’s creation). An exceedingly brilliant and noble lawyer and jurist, Judge
Wright struck down numerous anti-integration laws in his home state of
Louisiana, much to the anger and disappointment of his fellow white citizens,
many of whom distanced themselves from him. Judge Wright was a federal
district judge in Louisiana and then later a circuit judge on the United States
Court of Appeals for the District of Columbia Circuit. See Marjorie Hunter,
Judge J. Skelly Wright, Segregation Foe, Dies at 77, N.Y. TIMES, Aug. 8, 1988,
http://www.nytimes.com/1988/08/08/obituaries/judge-j-skelly-wrightsegregation-foe-dies-at-77.html.
84. Allgeyer v. Louisiana, 165 U.S. 578 (1897); Lochner v. New York, 198
U.S. 45 (1905).
85. Conkle, supra note 22, at 70, 97.
86. Chapman & McConnell, supra note 23, at 106.
87. 300 U.S. 379 (1937) (overruling Adkins v. Children’s Hosp., 261 U.S.
525 (1923) (holding federal minimum wage law applicable to women violates
Due Process Clause of Fifth Amendment)).
88. It is hardly a coincidence that the Court’s opinion came just weeks
after President Roosevelt, fed up with the Court’s four conservative, anti-New
Deal Justices (nicknamed the “Four Horsemen”), introduced the Judiciary
Reorganization Bill of 1937. Michael Schaub, FDR vs. The Court: An Epic Power
242
2013—2014]
Toward “Liberty”
From Allgeyer to Lochner and the official opening of the
Court’s economic substantive due process era to Casey and
Lawrence and the official opening of what some view as the
Court’s modern substantive due process era, the Court continued
to grapple with the theory:
The best known and most controversial line of modern due
process cases begins with Allgeyer v. Louisiana and Lochner v.
New York, is repudiated by the New Deal, revives with
Griswold v. Connecticut and Roe v. Wade, retreats with Bowers
v. Hardwick and Washington v. Glucksberg, and springs back
to life with Lawrence v. Texas.89
Attempting to bring order to this perceived chaos, countless
scholars have made valiant efforts to catalogue the theory’s
genesis, compile every one of the Court’s references to the topic,
and offer insight into the theory’s strengths and weaknesses.
Struggle Relived, NAT’L PUB. RADIO (Mar. 31, 2010), http://www.npr.org/2010/03/
31/125321024/fdr-vs-the-court-an-epic-power-struggle-relived. The bill, known
commonly as the “court-packing plan,” would have given the President the
power to appoint up to six new Justices for each sitting Justice over the age of
70 years and 6 months. Id. The four conservative Justices were Pierce Butler,
James McReynolds, George Sutherland, and Willis Van Devanter; the three
liberal Justices were Louis Brandeis, Benjamin Cardozo, and Harlan Stone.
While Chief Justice Charles Hughes frequently would join the liberal wing,
Justice Owen Roberts would often side with the conservatives. Daniel E. Ho &
Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. LEGAL ANALYSIS 69, 76–
77 (2010). It was Justice Roberts’ switch to the liberal wing in West Coast Hotel
Co. that later became known as the “switch in time that saved nine,” referring
to Justice Roberts’ likely pressured decision to vote to uphold one of President
Roosevelt’s most important pieces of legislation. Id. at 71.
89. Chapman & McConnell, supra note 23, at 103. Clearly, there is a battle
being waged within the Court as to which lineage of substantive due process is
appropriate. It may well be the case, as certainly this author posits, that the
lineage chosen depends on the philosophical proclivities of the opinion’s author
and, perhaps to an equal or lesser extent, the jurisprudence of the cosigners of
the majority opinion. The Court historically has given little guidance as to why
it chose one particular lineage over the other. See Conkle, supra note 22, at 83
(“In apparent recognition that Roe could not be defended on the basis of
historical tradition, Casey invoked a much broader theory, that of reasoned
judgment. Casey simply ignored Bowers. In Glucksberg, the Court
acknowledged Casey and its reaffirmation of Roe, but it did little to explain the
radically different methodologies in the Court’s two competing lines of
substantive due process decisions.”).
243
CHARLESTON LAW REVIEW
[Volume 8
These scholars typically have fallen into one of two camps:90
those who believe due process lacks any substantive component
at all, at least in the modern sense, and applies only to judicial
procedure;91 and those who believe that due process of law refers
to judicial procedure and natural law concepts of reasonableness,
justness, and fairness.92 Arriving at a conclusion between these
two extremes, one law review article posits that due to the
different Clauses’ unique drafting histories, the original
understanding of the Fifth Amendment’s Due Process Clause
lacked a substantive component, while the Fourteenth
Amendment included one.93 More recently, Professors Nathan
Chapman and Michael McConnell have concluded that although
the original understanding of due process incorporated a
substantive component that applied to the power of the
legislature, “[t]hese applications of due process to the legislature
were based on common law principles about the nature of
legislation as distinguished from judicial acts (not natural law as
that term is commonly used), the constitutional separation of
90. Chapman & McConnell, supra note 23, at 4–5.
91. Id. at 4. For brevity’s sake, and because this Article’s focus is on the
Court’s application of substantive due process rather than on the question of
whether the theory is sound to begin with, I intentionally focus on the scholars
who support the doctrine and assume, as I believe, that there is indeed a
substantive component to due process. However, for a list of prominent jurists
and legal scholars who take issue with the doctrine, see id. at n.5.
92. Id. at 5; see id. at n.6 (citing to leading scholars who espouse this view).
Professor Gedicks summarizes this school of thought when he writes that “[i]t is
evident from the ratification controversy over the Constitution’s initial lack of a
bill of rights that late eighteenth-century Americans understood natural and
customary rights to be invested with an existence and normative force as
‘higher’ or ‘constitutional’ law that did not depend upon their enumeration in a
written constitution.” Gedicks, supra note 29, at 595. Professor Gedicks argues
that the framers of the Fifth Amendment would have understood the Due
Process Clause to encompass protection of “natural and customary rights”
because of the framers’ education in and understanding of the role of the
classical natural law tradition of Cicero and others. Id. at 595–96. These
natural law theorists “maintained that an unjust law was not really a ‘law’” at
all. Id. at 596. Gedicks further argues that American lawyers and jurists in late
eighteenth century America could not have helped but to understand the “law”
referenced in “due process of law” as containing “normative content beyond
mere positivist compliance with the rule of recognition.” Id.
93. Williams, supra note 29, at 511–12.
244
2013—2014]
Toward “Liberty”
powers, and specific constitutional limits on the power of the
legislature.”94
To be sure, each of these schools of thought raises important
questions, with some questions cutting more deeply, piercing the
rhetoric and getting to the marrow of the matter: What is
government’s role in legislating behavior that neither tangibly
harms others nor otherwise trespasses into the realm of activities
over which government’s inherent police power ought not extend
in light of the Constitution’s purpose?95 Neither time nor space
allows for a comprehensive discussion of each of the major views
of substantive due process; however, this Article assumes the
existence of the theory—that is, “due process of law” entails both
a substantive and procedural component—an assumption in line
with the Court’s current jurisprudence and therefore necessary to
a further exposition on the importance of the concept of liberty in
Lawrence and again in Windsor.
B. Justice Kennedy’s Concept of Liberty And Why It Matters
Justice Kennedy’s concept of liberty is key to understanding
Lawrence and Windsor.96 Central to his understanding of liberty
94. Chapman & McConnell, supra note 23, at 6.
95. For example, Timothy Sandefur concludes, I think rightly so, that “[i]t
seems beyond doubt that the Constitution exists for certain purposes and is not
a morally neutral framework for empowering the rulemaking authority.”
Sandefur, supra note 30, at 322. Sandefur looks to the Preamble to support his
argument that the Constitution’s text and protections cannot be viewed in a
vacuum, but rather must be viewed with the document’s overall purpose in
mind, that is: to preserve the blessings of liberty. Id. Sandefur’s conclusion finds
common ground with the opinion of Justice Chase in Calder v. Bull. 3 U.S. (3
Dall.) 386, 388 (1798); more to the point, his conclusion is well grounded in the
philosophy of Locke, Mill, and Hobbes. For instance, Hobbes speaks of the “right
of nature” in his Leviathan:
The right of nature, which writers commonly call jus naturale, is the
liberty each man hath to use his own power as he will himself for the
preservation of his own nature; that is to say, of his own life; and
consequently, of doing anything which in his own judgment and
reason, he shall conceive to be the aptest means thereunto.
THOMAS HOBBES, LEVIATHAN 64 (1651) (emphasis added).
96. Charles D. Kelso & R. Randall Kelso, The Constitutional Jurisprudence
of Justice Kennedy on Liberty, 9 DARTMOUTH L.J. 29, 30, 37 (2011); Adam
Liptak, Surprising Friend of Gay Rights in a High Place, N.Y. TIMES (Sept. 1,
245
CHARLESTON LAW REVIEW
[Volume 8
is the philosophical lens through which Justice Kennedy views
the Constitution. This lens can be best described as hewn from
the trunk of classical liberalism97 and tented with the Justice’s
broad view of liberty.98 Such a broad view of liberty “derives from
an understanding of 18th-century Enlightenment philosophy,
based on writers such as John Locke and Adam Smith, as
developed in the 19th century by writers such as John Stuart
Mill.”99 Some scholars classify Justice Kennedy as a modern
libertarian;100 others have dismissed him as capricious.101 Still
others, like Professor Eric Posner, have been more pointed—even
harsh—in their criticism:
Kennedy stands out from his colleagues because of the
frequency with which he votes to strike down statutes, and the
vapid, flowery language he uses to explain his decisions. . . .
This vacuous New Age rhetoric turns off people who expect
explanations when the judiciary overrules the legislative
branch.
Abstract propositions about human values cannot decide
cases.102
Then there are the gentler, more innocuous critiques, like
those of Professor Heather Gerken, who recently observed that
Justice Kennedy’s “penchant for abstraction leads him to write
opinions that are a little long on stirring phrases and a little
2013), http://www.nytimes.com/2013/09/02/us/surprising-friend-of-gay-rights-ina-high-place-html.
97. See Gerald Gaus & Shane D. Courtland, Liberalism, STANFORD
ENCYCLOPEDIA OF PHILOSOPHY, http://plato.stanford.edu/entries/liberalism/
#ClaLib (last updated Sept. 16, 2010).
98. Kelso, supra note 96, at 37.
99. Id. at 30.
100. See, e.g., Barnett, Libertarian Revolution, supra note 38; David Boaz,
Justice Kennedy’s Mysterious Philosophy, CATO AT LIBERTY, CATO INSTITUTE
(June 17, 2012, 2:44 PM), http://www.cato.org/blog/justice-kennedys-mysteriousphilosophy (“And it’s not like the idea of Justice Kennedy’s libertarianism is a
deep, dark secret.”).
101. Allen Rostron, Affirmative Action, Justice Kennedy, and the Virtues of
the Middle Ground, 107 NW. U. L. REV. 1037, 1037 (2013) (“Critics condemn
Justice Kennedy for having an unprincipled, capricious, and self-aggrandizing
style of decision making.”).
102. Posner, supra note 41.
246
2013—2014]
Toward “Liberty”
short on doctrinal analysis.”103
To arrive at a definition of liberty fairly attributable to
Justice Kennedy, this section synthesizes portions of the three
opinions he has authored implicating liberty concerns: Casey,
Lawrence, and Windsor. 104 What follows are five paragraphs
containing rule statements taken from among these three
opinions. Each paragraph is preceded by a question that
addresses the theme to which the accompanying rule statements
relate.
* **
What Is Kennedy’s Conception of Liberty?
Liberty entails transcendent dimensions that “extend[]
beyond spatial bounds[,] . . . [and it] presumes an autonomy of
self that includes freedom of thought, belief, expression, and
certain intimate conduct.”105 Moreover, these choices are central
to personal dignity and autonomy, for “[a]t the heart of liberty”
protected by the Fourteenth Amendment is “the right to define
one’s own concept of existence, of meaning, of the universe, and of
the mystery of human life. Beliefs about these matters could not
define the attributes of personhood were they formed under
compulsion of the State.” 106 Each of our destinies is “shaped to a
large extent on [our] own conception of [our] spiritual
imperatives and [our] place in society.”107
103. Gerken, supra note 31, at 845. “But Justice Kennedy’s penchant for
abstraction conceals some analytic slippage that would have been evident had
the opinion been written in the finest tradition of common law judging.” Id. at
847.
104. This list includes Casey, 505 U.S. 583 (1992). Although a plurality
opinion whose authorship is attributed to three Justices, O’Connor, Kennedy,
and Souter, the portion of the opinion expounding on “liberty” is commonly
attributed to Kennedy. See Barnett, Libertarian Revolution, supra note 38, at
33 (stating that in Casey, “Justice Kennedy began to escape from the New Dealera box in the part of the coauthored opinion that is commonly attributed to
him[,] . . . rest[ing] abortion rights . . . on liberty . . . .”).
105. Lawrence v. Texas, 539 U.S. 558, 562 (2003).
106. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)
(plurality opinion).
107. Id. at 852.
247
CHARLESTON LAW REVIEW
[Volume 8
How Does Kennedy Define the Limits of an Individual’s
Sphere of Liberty?
An individual’s actions in furtherance of his own moral code
remain within the sphere of personal liberty so long as these
activities do not work to harm others or society as a whole.108
What Are Kennedy’s Views on the General Boundaries
Beyond Which Government May Not Go?
“In our tradition the State is not omnipresent in the home.
And there are . . . spheres of our lives and existence, outside the
home, where the State should not be a dominant presence.”109
The Constitution promises “that there is a realm of personal
liberty which the government may not enter.”110 “Neither the Bill
of Rights nor the specific practices of States at the time of the
adoption of the Fourteenth Amendment marks the outer limits of
. . . [this] sphere of liberty . . . .”111 Liberty safeguards against
arbitrary legislation112 and protects all fundamental rights from
invasion by the government.113
108. See Lawrence, 539 U.S. at 578 (“The present case does not involve
minors. It does not involve persons who might be injured or coerced or who are
situated in relationships where consent might not easily be refused. It does not
involve public conduct or prostitution.”).
109. Id. at 562.
110. Casey, 505 U.S. at 847; see also United States v. Windsor, 570 U.S. ___,
___, 133 S. Ct. 2675, 2695 (2013) (“And though Congress has great authority to
design laws to fit its own conception of sound national policy, it cannot deny . . .
liberty . . . .”).
111. Casey, 505 U.S. at 848 (citing U.S. CONST. amend. IX). The Ninth
Amendment states: “The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.” U.S.
CONST. amend. IX.
112. Casey, 505 U.S. at 847 (citing Poe v. Ullman, 367 U.S. 497, 541 (1961)
(Harlan, J., dissenting from dismissal)); see also Windsor, 570 U.S. at ___, 133
S. Ct. at 2695 (stating that “the Fifth Amendment . . . withdraws from
Government the power to degrade or demean”).
113. Casey, 505 U.S. at 846–47 (citing Whitney v. California, 274 U.S. 357,
373 (1927) (Brandeis, J., concurring); Windsor, 570 U.S. at ___,133 S. Ct. at
2695 (holding the “liberty of the person [is] protected by the [Due Process
248
2013—2014]
Toward “Liberty”
What Are Kennedy’s Views on the Specific Boundaries
Beyond Which Government May Not Go?
The government cannot dictate the personal and moral
philosophy to which a person should subscribe.114 To be sure, in
situations in which reasonable people disagree, the government
is free to choose one position or the other.115 However, that
license extends only to a choice not otherwise considered a
protected liberty.116 Specifically, the Constitution protects certain
personal decisions, including those related to (1) marriage, (2)
procreation, (3) contraception, (4) family relationships, (5) child
rearing, and (6) education.117 Decisions about each of these topics
“involv[e] the most intimate and personal choices a person may
make in a lifetime . . . .”118 However, this list is not exhaustive,
for the Framers of the two Due Process Clauses did not “know[]
the components of liberty in its manifold possibilities . . . “; if they
did, “they might have been more specific.”119 Instead, “[t]hey did
not presume to have this insight. They knew times can blind us
to certain truths and later generations can see that laws once
thought necessary and proper in fact serve only to oppress.”120
How Does Kennedy Characterize the Judiciary’s Role
In Safeguarding Liberty?
The liberty protected by due process requires the Court to
strike the appropriate balance between “liberty and the demands
of organized society”121; this balance “is the balance struck by this
country, having regard to what history teaches are the traditions
Clause of the] Fifth Amendment”).
114. See Casey, 505 U.S. at 850–51.
115. Id. at 851.
116. Id.
117. Id.
118. Id.
119. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
120. Id. at 578–79.
121. Casey, 505 U.S. at 850.
249
CHARLESTON LAW REVIEW
[Volume 8
from which it developed as well as the traditions from which it
broke.”122 The Court’s role “is to define the liberty of all, not to
mandate [its] own moral code.”123 When deciding what actions
liberty protects, the Court will be called upon to interpret the
Constitution using reasoned judgment, as it has always done and
is charged with doing.124
* **
This exercise demonstrates that Justice Kennedy’s views of
liberty are similar to those of Cooley and Tiedeman and,
consequently, of natural law philosophers like John Locke and
John Stuart Mill. Because this concept of liberty is concerned
with the demarcation of the individual’s sphere of autonomy and
the government’s sphere of authority, Justice Kennedy is also
concerned with these bounds.125 Moreover, to the extent that this
exercise demarcates precisely what sort of activity belongs
peculiarly to the individual (and therefore free of government
intervention) and what activity properly falls outside of that
sphere (and therefore within the purview of government’s police
powers), Justice Kennedy focuses on identifying the types of
activities, behaviors, and relationships that must remain outside
of government’s control in order to preserve an individual’s
dignity.126 Justice Kennedy’s Lockean lens colors his
understanding of liberty, as Lawrence clearly demonstrates.127
122. Id. (citing Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J.,
dissenting from dismissal on jurisdictional grounds)).
123. Id.
124. Id. at 849.
125. United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013).
126. Casey, 505 U.S. at 851.
127. Lawrence v. Texas, 539 U.S. 558, 558 (2003).
250
2013—2014]
Toward “Liberty”
III. LIBERTY AFTER LAWRENCE128
Lawrence changed the substantive due process discussion
forever.129 In one fell swoop, the Lawrence opinion “wrapped
three distinct but intertwined strands of substantive due process
(zonal, decisional, and relational) into a single concept:
liberty.”130 As Professor Tribe observes, after Lawrence “it can no
longer be claimed that substantive due process turns on an ad
hoc naming game focused on identifying discrete and essentially
unconnected individual rights corresponding to the private
activities our legal system has traditionally valued (or at least
tolerated).”131 By jettisoning the “rooted in history and tradition”
test articulated in Glucksberg, the Lawrence Court shifted the
focus away from the laundry list of historically approved
activities and back to the proper focus of relationships and selfgoverning commitments.132 By grounding the Court’s substantive
128. Responding to a report of a weapons disturbance, local law enforcement
went to Lawrence’s home, witnessed Lawrence and Garner engaging in a sexual
act, arrested both of them, and charged them with violating a Texas statute
criminalizing anal sex between members of the same sex. Lawrence, 539 U.S. at
562–63. Lawrence and Garner were tried and convicted, but they appealed and
alleged the criminal statute violated both the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. Id. at 563. In affirming the convictions,
the Texas appellate court cited to the Court’s then-controlling precedent of
Bowers v. Hardwick, 478 U.S. 186 (1985). Id. Bowers entailed virtually identical
facts, except that the statute criminalizing the behavior applied to “deviant”
acts committed between members of the same and opposite sexes. See id. at
566.
129. See Barnett, Libertarian Revolution, supra note 38, at 35 (noting
“Lawrence is potentially revolutionary”); Yoshino, supra note 11, at 780 (noting
that Justice Kennedy’s “str[iking] the chains of history from due process
jurisprudence” is a move that is all but impossible to overstate); Tribe,
Fundamental Right, supra note 1, at 1899 (“Lawrence significantly altered the
historical trajectory of substantive due process and thus of liberty.”). But see
Conkle, supra note 22, at 66 (“[T]he ruling highlights the conceptual chaos of
modern substantive due process.”).
130. Gerken, supra note 31, at 846 (citing Kendall Thomas, Beyond the
Privacy Principle, 92 COLUM. L. REV. 1431, 1443–48 (1992)).
131. Tribe, Fundamental Right, supra note 1, at 1955.
132. Id. at 1922 (quoting Washington v. Glucksberg, 521 U.S. 702, 721
(1996)). Professor Eric Berger recently wrote about Lawrence and a theory he
terms “stealth constitutionalism.” See generally Eric Berger, Lawrence’s Stealth
Constitutionalism and Same-Sex Marriage Litigation, 21 WM. & MARY BILL RTS.
J. 765 (2013).
251
CHARLESTON LAW REVIEW
[Volume 8
due process analysis in the concept of liberty rather than privacy,
Lawrence charted a new course guided by traditional Lockean
ideas regarding the proper balance between those natural rights
an individual retains and those he ceded to government upon
entering into a social contract.133
To illustrate the Lawrence Court’s use of a Lockean lens
through which it viewed the issue, consider the following three
opinion excerpts (sequentially listed). Each excerpt is
immediately followed by an excerpt from either Locke, Tiedeman,
or Mill. For the first excerpt, the Lawrence Court stated:
Liberty protects the person from unwarranted government
intrusions into a dwelling or other private places. In our
tradition the State is not omnipresent in the home. And there
On closer view, however, Lawrence turned on a series of undertheorized, stealth determinations. It framed the question at a broad
level of generality; relied on hybrid reasoning, using equal protection
rationales to support a due process holding; declined to identify a level
of scrutiny; and invoked changing public opinion. Each of these moves
helped the Court reach its outcome, but, significantly, the Court
inadequately explained each, leaving considerable doubt about how it
would approach similar determinations in future cases.
Id. at 767–68 (footnote omitted). I understand Professor Berger’s concerns about
the Lawrence Court’s lack of black-letter guidance, but I respectfully disagree
with his conclusion about the Lawrence opinion being “under-theorized.”
Professor Berger considers Lawrence to be a stealth constitutionalism case
because he believes the opinion is “erratic,” “non-transparent,” and “gives the
impression that constitutional law is mostly ad hoc, shaped on a case-by-case
basis by results-oriented judges.” Id. at 771. To the contrary, as this article
demonstrates, the Lawrence Court’s re-framing of substantive due process
theory and equal protection concerns in terms of liberty—specifically, the idea
that there is a sphere of autonomous actions and relationship-driven decision
making beyond the state’s reach—more solidly grounds the discussion in the
Constitution’s purpose (creating a pact that cedes certain powers to the
government while reserving inviolate those “natural rights” the framers
understood to be necessarily outside of government’s meddling). Id. Lines must
always be drawn in constitutional law, for that is the nature of interpreting a
document that establishes general boundaries while purposefully (and wisely)
omitting a list of then-known and easily-imagined activities and where, in
relation to the general boundaries, they properly fall. Thus, it is only through a
case-by-case basis that the contours of the constitutionally-enshrined
boundaries become more easily visible.
133. Barnett, Libertarian Revolution, supra note 38, at 35; LOCKE, supra
note 57, at 298–99.
252
2013—2014]
Toward “Liberty”
are other spheres of our lives and existence, outside the home,
where the State should not be a dominant presence. Freedom
extends beyond spatial bounds. Liberty presumes an autonomy
of self that includes freedom of thought, belief, expression, and
certain intimate conduct. The instant case involves liberty of
the person both in its spatial and in its more transcendent
dimensions.134
Locke provides a comparable opinion:
[M]en, when they enter into society, give up the equality,
liberty, and executive power they had in the state of nature,
into the hands of the society, to be so far disposed of by the
legislative, as the good of the society shall require; yet it being
only with an intention in every one the better to preserve
himself, his liberty and property; (for no rational creature can
be supposed to change his condition with an intention to be
worse) the power of the society, or legislative constituted by
them, can never be supposed to extend farther than the
common good . . . .135
For the second excerpt, the Lawrence Court stated:
The condemnation [of homosexual conduct] has been shaped by
religious beliefs, conceptions of right and acceptable behavior,
and respect for the traditional family. For many persons these
are not trivial concerns but profound and deep convictions
accepted as ethical and moral principles to which they aspire
and which thus determine the course of their lives. These
considerations do not answer the question before us, however.
The issue is whether the majority may use the power of the
State to enforce these views on the whole society through
operation of the criminal law.136
Consider this excerpt in light of the similar opinion of Tiedeman:
[The police powers] cannot be called into play in order to save
one from the evil consequences of his own vices, for the
violation of a right by the action of another must exist or be
134. Lawrence v. Texas, 539 U.S. 558, 562 (2003); cf. Mugler v. Kansas, 123
U.S. 623, 661 (1887) (“There are, of necessity, limits beyond which legislation
cannot rightfully go.”).
135. LOCKE, supra note 57, at 298–99 (emphasis omitted).
136. Lawrence, 539 U.S. at 571.
253
CHARLESTON LAW REVIEW
[Volume 8
threatened, in order to justify the interference of law. It is true
that vice always carries in its train more or less damage to
others, but it is an indirect and remote consequence; it is more
incidental than consequential. At least it is so remote that very
many other causes co-operate to produce the result, and it is
difficult, if not impossible, to ascertain which is the controlling
and real cause.137
For the third and final excerpt, the Lawrence Court stated:
In explaining the respect the Constitution demands for the
autonomy of the person in making these choices, we stated as
follows: . . . At the heart of liberty is the right to define one’s
own concept of existence, of meaning, of the universe, and of
the mystery of human life. Beliefs about these matters could
not define the attributes of personhood were they formed under
compulsion of the State. . . . The present case does not involve
minors. It does not involve persons who might be injured or
coerced or who are situated in relationships where consent
might not easily be refused. . . . “It is a promise of the
Constitution that there is a realm of personal liberty which the
government may not enter.”138
Once again, a similar opinion is provided, this time by Mill:
[T]here is a sphere of action in which society, . . . has, if any,
only an indirect interest; comprehending all that portion of a
person’s life and conduct which affects only himself, or if it also
affects others, only with their free, voluntary, and undeceived
consent and participation. . . . [This] principle requires liberty
of tastes and pursuits; of framing the plan of our life to suit our
own character; of doing as we like, subject to such
consequences as may follow: without impediment from our
fellow-creatures, so long as what we do does not harm them,
even though they should think our conduct foolish, perverse, or
wrong.139
137. CHRISTOPHER G. TIEDEMAN, A TREATISE ON THE LIMITATIONS OF POLICE
POWER IN THE UNITED STATES: CONSIDERED FROM BOTH A CIVIL AND CRIMINAL
STANDPOINT 150 (1886).
138. Lawrence, 539 U.S. at 574, 578 (citing Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 847 (1992) (plurality opinion)).
139. MILL, supra note 56, at 28–29.
254
2013—2014]
Toward “Liberty”
These key excerpts from Lawrence lend credence to Professor
Tribe’s assessment that “the principles governing the
constitutional assignment of fundamental rights and liberties
are, at bottom, principles concerning the allocation of decision
making roles among individuals, associations, and other public
and private entities . . . .”140 Indeed, Lawrence asks “the more
germane question of who, as between the state and the
individuals who are subject to its law, should be entrusted to
make choices about the shape of an individual’s life and of the
relationships that may fulfill it.”141 The importance of the
Court’s framing of the issue cannot be overemphasized, for
Lawrence did much more than simply overrule Bowers142—it
flatly and unapologetically rejected the Bowers Court’s
formulation of due process and, consequently, the Bowers Court’s
framing of the question presented.143
According to the Lawrence Court, the issue before it was
whether the government can punish two consenting adults who,
in the confines of a private home, engage in sexual activity with
140. Tribe, Fundamental Right, supra note 1, at 1927 (citing to Laurence H.
Tribe, The Supreme Court, 1972 Term-Foreword: Toward a Model of Roles in
the Due Process of Life and Law, 87 HARV. L. REV. 1 (1973)).
141. Id. at 1924.
142. Sending Bowers to what Professor Tribe refers to as “that dustbin of
constitutional blunders.” Tribe, Fundamental Right, supra note 1, at 1925.
143. See Yoshino, supra note 11, at 780 (“Justice Kennedy’s majority opinion
in Lawrence not only rejected the holding of Bowers, but also its formulation of
due process as well . . . .”)
That statement, we now conclude, discloses the Court’s own failure to
appreciate the extent of the liberty at stake. To say that the issue in
Bowers was simply the right to engage in certain sexual conduct
demeans the claim the individual put forward, just as it would
demean a married couple were it to be said marriage is simply about
the right to have sexual intercourse.
Lawrence, 539 U.S. at 567. According to Professor Gerken,
[t]he real fight in substantive due process cases—as Larry argues—
concerns the level of generality at which one casts that argument. The
tension between abstraction and precision, evident in the style of the
two opinions, is thus at the heart of the doctrinal debate. If the right
is the right to sodomize, Lawrence will lose. If the right is the right to
form a ‘personal bond,’ Lawrence will win.
Gerken, supra note 31, at 848.
255
CHARLESTON LAW REVIEW
[Volume 8
one another.144 There is no discussion of privacy in the majority’s
opinion, no mention of a particular fundamental right, and not so
much as a whisper of whether the Texas law in question was
entitled to deference of any sort.145 Moreover, Glucksberg, with
its “rooted in . . . history and tradition” test, is conspicuously
absent from the opinion, even though it was a substantive due
process case, and one decided a mere six years prior.146 As
Professor Tribe explains:
By implicitly rejecting the notion that its task was simply to
name the specific activities textually or historically treated as
protected, the Court lifted the discussion to a different and
potentially more instructive plane. It treated the substantive
due process precedents invoked by one side or the other not as
a record of the inclusion of various activities in—and the
exclusion of other activities from—a fixed list defined by
tradition, but as reflections of a deeper pattern involving the
allocation of decisionmaking roles, not always fully understood
at the time each precedent was added to the array. 147
Along with its implicit rejection of the Glucksberg-brand “name
that right” game, the Lawrence Court explicitly recognized that
the “due process right to demand respect for conduct protected by
the substantive guarantee of liberty” is inextricably linked to
“[e]quality of treatment.”148 Timothy Sandefur explains this
144. See Lawrence, 539 U.S. at 564.
145. See Barnett, Libertarian Revolution, supra note 38, at 35; see also
Gerken, supra note 31, at 846 n.20 (noting that the Lawrence Court glossed
over the Glucksberg factors, placed the onus on the state to justify a law that
infringes on individual liberty, and “dance[d] around the terminology of strict
scrutiny traditionally deployed in such cases.”).
146. See Lawrence, 539 U.S. at 588 (Scalia, J., dissenting).
147. Tribe, Fundamental Right, supra note 1, at 1899.
In particular, the Court gave short shrift to the notion that it was
under some obligation to confine its implementation of substantive
due process to the largely mechanical exercise of isolating
“fundamental rights” as though they were a historically given set of
data points on a two-dimensional grid, with one dimension
representing time and the other representing a carefully defined and
circumscribed sequence of protected primary activities. . . .
Id. at 1898.
148. Id. at 1922, 1934 (quoting Lawrence, 539 U.S. at 575).
256
2013—2014]
Toward “Liberty”
linkage of due process and equal protection in terms of what he
views as the Lawrence Court’s engagement in a typical natural
law type of analysis,149 i.e. “whether the challenged legislation
qualified as law—[by evaluating] whether the acts in question
served a general public purpose or were mere exertions of power
by the ruling authority for no other reason than that it held
political power.”150
149. Sandefur, supra note 30, at 322. Sandefur concludes that “[i]t seems
beyond doubt that the Constitution exists for certain purposes and is not a
morally neutral framework for empowering the rulemaking authority.” Id.
Sandefur looks to the Preamble to support his argument that the Constitution’s
text and protections cannot be viewed in a vacuum, but rather must be viewed
with the document’s overall purpose in mind, that is, to preserve the blessings
of liberty. Id. Sandefur’s conclusion finds common ground with the opinion of
Justice Samuel Chase in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798). Justice
Chase’s argument in arriving at his conclusion that the legislature could not
change the rules of litigation midway through a case hinged on his belief that
the Constitution “imposes implicit limits on the laws the legislature can enact,
and the content of those implicit limits can be understood only by considering
what the Constitution was written to accomplish and what government may not
justly do[.]” Sandefur, supra note 30, at 321.
The purposes for which men enter into society will determine the
nature and terms of the social compact; and as they are the
foundation of the legislative power, [i.e., the purposes] will decide
what are the proper objects of [government authority]. . . . There are
certain vital principles in our free Republican governments, which will
determine and over‐rule an apparent and flagrant abuse of legislative
power; as to authorize manifest injustice by positive law; or to take
away that security for personal liberty, or private property, for the
protection whereof the government was established. An ACT of the
Legislature (for I cannot call it a law) contrary to the great first
principles of the social compact; cannot be considered a rightful
exercise of legislative authority. The obligation of a law in
governments established on express compact, and on republican
principles, must be determined by the nature of the power, on which it
is founded.
Calder, 3 U.S. (3 Dall.) at 388 (emphasis omitted).
150. Sandefur, supra note 30, at 324. Lawrence v. Texas makes the same
basic argument: The government proscribed private, consensual, homosexual
conduct not to protect the general public from actual harm but simply to impose
a burden on a disfavored minority. 539 U.S. 558, 584 (2003). The law at issue
did not involve public conduct, prostitution, or government benefits; it did not
protect minors, or “persons who might be injured or coerced or who are situated
in relationships where consent might not easily be refused.” Id. at 578. Because
the statute did not realistically advance any genuine public good, it was simply
an arbitrary attempt to “demean” adults “who, with full and mutual consent
257
CHARLESTON LAW REVIEW
[Volume 8
Key to understanding Lawrence’s significance is realizing
that it is important not only because of its result151 but also—and
more importantly—because of the new path the Court traversed
in the process, and how far down that path the Court is willing to
travel in the future. The path was one paved using the raw
materials of two doctrinally separate, yet sometimes
commingling, theories: equal protection and substantive due
process. To the Court, “[e]quality of treatment and the due
process right to demand respect for conduct protected by the
substantive guarantee of liberty are linked in important respects,
and a decision on the latter point advances both interests.”152
This narrative is one “in which due process and equal protection,
far from having separate missions and entailing different
inquires, are profoundly interlocked in a legal double helix.” 153
This “double helix” represents “a single, unfolding tale of equal
liberty and increasingly universal dignity.”154 Ten years later,
this tale, far from over, revealed a new chapter that will no doubt
come to be known as the precursor to the Loving of our time.
from each other, engaged in sexual practices common to a homosexual lifestyle.”
Id. Thus the statute was an arbitrary act, violating the lawfulness requirement.
“The Texas statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual.” Id.
151. After all, the Court could have easily struck down the Texas law on
Equal Protection grounds alone based on the “rational basis with a bite”
standard applied in Romer v. Evans, 517 U.S. 620 (1996); the Court admits as
much. See Lawrence, 539 U.S. at 574–75 (stating that the possibility of using
Romer to invalidate the Texas law “is a tenable argument” but nonetheless
concluding that “the instant case requires [the Court] to address whether
Bowers itself has continuing validity.”). Justice O’Connor joined in the Court’s
judgment only because she viewed the Equal Protection Clause as the
appropriate framework to strike down the law. Id. at 579 (O’Connor, J.,
concurring in the judgment) (“I base my conclusion on the Fourteenth
Amendment’s Equal Protection Clause.”).
152. Lawrence, 539 U.S. at 575.
153. Tribe, supra note 1, at 1898.
154. Id.
258
2013—2014]
Toward “Liberty”
IV. UNDERSTANDING WINDSOR
A. DOMA: A Primer155
Any discussion of DOMA156 and its demise would be
incomplete without a brief history of the infamous piece of
legislation.157 Quite simply, DOMA exists because of the national
outcry following the Hawaii Supreme Court’s holding twenty
years ago in Baehr v. Lewin,158 which declared unconstitutional a
state law limiting marriage to only between a man and
woman.159 The Hawaii Legislature reacted by introducing a
155. This Article addresses only United States v. Windsor. For a thoughtful
and comprehensive procedural history for Hollingsworth v. Perry, see generally
Corinne Blalock, Note, Hollingsworth v. Perry: Expressive Harm and the Stakes
of “Marriage,” 8 DUKE J. CONST. L. & PUB. POL’Y SIDEBAR 217 (2012).
156. Defense of Marriage Act, Pub. L. No. 104–199, § 3(a), 110 Stat. 2419,
2419 (1996) (codified at 1 U.S.C. § 7 (2006)), available at http://www.gpo.gov/
fdsys/pkg/PLAW-104publ199/pdf/PLAW-104publ199.pdf.
157. For more on DOMA’s history, see generally Daniel J. Crooks III, In
Defense of the Obama Administration’s Non-Defense of DOMA, 4 AM. U. WASH.
C. OF L. LEGIS. & POL’Y BRIEF 33, 58–61 (2012).
158. See E.J. Graff, 15 Years After DOMA Hearing Reveals a Nation
Transformed, THE ATLANTIC (July 20, 2011, 6:06 PM), http://www.theatlantic.
com/politics/archive/2011/07/15-years-after-doma-hearing-reveals-a-nationtransformed/242273 (“The threat against which DOMA was supposed to defend
was a Hawaii lawsuit that, for a couple of years, looked as if it might open the
door to same-sex marriages in that state—which might then infect other states,
as mainland same-sex pairs got married in Maui and then asked to be
recognized at home.”); see also Jessica Portmess, Comment, Until the Plenary
Power Do Us Part: Judicial Scrutiny of the Defense of Marriage Act in
Immigration After Flores-Villar, 61 AM. U. L. REV. 1825, 1844 (2012) (“In 1996,
Congress passed DOMA in a wave of panic that states would begin to recognize
same-sex marriage.”).
159. Baehr v. Lewin, 852 P.2d 44, 49, 58 (Haw. 1993) (plurality opinion)
(citing HAW. REV. STAT. § 572-1 (1985)) (“[R]equisites of valid marriage
contract”). Before the Baehr court was HAW. REV. STAT. § 572-1. The court,
framing the issue as one sounding in equal protection, concluded that “sex” was
a suspect classification subject to strict scrutiny and held that HAW. REV. STAT.
§ 572-1 was “presumed to be unconstitutional” unless the state could prove the
statute passed “strict scrutiny.” See Baehr, 852 P.2d at 67 (“It therefore follows,
and we so hold, that (1) HRS § 572-1 is presumed to be unconstitutional (2)
unless Lewin, as an agent of the State of Hawaii, can show that (a) the statute’s
sex-based classification is justified by compelling state interests and (b) the
statute is narrowly drawn to avoid unnecessary abridgements of the applicant
couples’ constitutional rights.”).
259
CHARLESTON LAW REVIEW
[Volume 8
constitutional amendment prohibiting same-sex marriage, and
the people of Hawaii eventually approved the amendment.160
On September 21, 1996, President Clinton signed “The
Defense of Marriage Act” (DOMA) into law.161 DOMA’s purpose
was unambiguously “to create federal protection against the
growing threat that legalization of same-sex marriage in one
state would open the door for judges and other government
officers to interpret federal law . . . as forcing other states and the
federal government to recognize same-sex marriage . . . .”162
DOMA contains two operative sections, § 2 and § 3.163 Section 2
amends Chapter 115 of Title 28 of United States Code and adds
the following section (§ 1738C):
No State, territory, or possession of the United States, or
Indian tribe, shall be required to give effect to any public act,
record, or judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons
of the same sex that is treated as a marriage under the laws of
such other State, territory possession, or tribe, or a right or
claim arising from such relationship.164
Section 3 amends Chapter 1 of Title 1 of the United States
Code and adds the following section:
160. HAW. CONST. art. I, § 23 (H.B. 117 of 1997 was ratified by the people on
November 3, 1998); accord William C. Duncan, Whither Marriage in the Law?,
15 REGENT U. L. REV. 119, 120 (2003) (citing to HAW. CONST. art. I, § 23)
(“Marriage licenses did not issue to same-sex couples, though. While the State
awaited a ruling on its appeal to the Hawaii Supreme Court, the Hawaii
Legislature put forward, and the people of the state approved, an amendment to
the state constitution that reserved for the legislature the right to define
marriage as the union of a man and a woman.”).
161. Defense of Marriage Act, Pub. L. No. 104–199, § 3(a), 110 Stat. 2419,
2419 (1996) (codified at 1 U.S.C. § 7 (2006)), available at
http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/pdf/PLAW-104publ199.pdf.
162. Lynn D. Wardle, Section Three of the Defense of Marriage Act:
Deciding, Democracy, and the Constitution, 58 DRAKE L. REV. 951, 959 (2010)
(citing Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the
Judiciary, 104th Cong. 28–32 (1996) [hereinafter DOMA Hearing] (statement of
Prof. Lynn D. Wardle)).
163. 1 U.S.C. § 7 (1996).
164. 28 U.S.C. § 1738C (1996).
260
2013—2014]
Toward “Liberty”
In determining the meaning of any Act of Congress, or of
any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the
word “marriage” means only a legal union between one man
and one woman as husband and wife, and the word “spouse”
refers only to a person of the opposite sex who is a husband or
a wife.165
Only § 3 has come before the Court,166 so this article
discusses that section only.
Beginning in 2004, DOMA came under increased public
scrutiny.167 That year, the House of Representatives
Subcommittee on the Constitution held a hearing to discuss the
law’s constitutionality in light of shifting public sentiment and an
increased wave of opposition among constitutional law
scholars.168 However, from 2004 until 2011, Congress took no
measurable steps to repeal the Act, and the President continued
to defend and enforce it.169 Then, in February 2011, Attorney
General Eric Holder notified House Speaker John Boehner of the
President’s decision to continue to enforce, but not to defend,170
§ 3 of DOMA.171 President Obama made his decision after the
filing of two cases in two district courts within the Second
Circuit, and after considering the Second Circuit’s absence of
165. 1 U.S.C. § 7 (1996).
166. See United States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675, 2682
(“DOMA contains two operative sections: Section 2, . . . has not been challenged
here . . . .”).
167. Crooks, supra note 157, at 58; DOMA Hearing, supra note 162.
168. DOMA Hearing, supra note 162, at 2 (statement of Chairman Chabot)
(“[O]ther respected individuals believe that DOMA could and will be declared
unconstitutional, often citing Justice Kennedy’s majority opinion in Romer v.
Evans. . . . More recently, some have argued that DOMA may also be challenged
. . . under the Supreme Court’s decision in Lawrence v. Texas.”).
169. Crooks, supra note 157, at 58–59.
170. For more on the constitutional authority and historical precedent of
presidential non-enforcement and non-defense of statutes, including President
Obama’s decision to cease defense of DOMA, see generally Crooks, supra note
157.
171. See Letter from Eric H. Holder, Jr., Att’y Gen., to the Hon. John A.
Boehner, Speaker, U.S. House of Representatives 1 (Feb. 23, 2011), available at
http://www.justice.gov/opa/pr/2011/February/11-ag-223.html [hereinafter Letter
to Speaker].
261
CHARLESTON LAW REVIEW
[Volume 8
“precedent on whether sexual-orientation classifications are
subject to rational basis review or whether they must satisfy
some form of heightened scrutiny.”172 One of the two173 cases was
Windsor v. United States.174
B. When Edith Met Thea
While traversing through the dense forest of constitutional
law, it is helpful to remember that the story of the Constitution,
and more particularly the journey of those under its rule, is a
story of humanity.175 This story is a story of two people, Edith
Windsor and Thea Spyer, two Americans, who after forty years of
being together as a couple, wanted to show their love and
commitment for one another by joining their lives publicly in a
civil marriage ceremony attended by their closest family and
friends.176 After all, they had been together since the mid-
172. Id. (“Previously, the Administration has defended Section 3 in
jurisdictions where circuit courts have already held that classifications based on
sexual orientation are subject to rational basis review, and it has advanced
arguments to defend DOMA Section 3 under the binding standard that has
applied in those cases.”).
173. The other case, not related to this article, was Pedersen v. Office of
Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012). The Court denied certiorari
on June 27, 2013. See Pederson v. Office of Personnel Management,
SCOTUSBLOG, http://www.scotusblog.com/case-files/cases/pedersen-v-office-ofpersonnel-management/ (last visited Oct. 28, 2013).
174. 570 U.S. ___, 133 S. Ct. 2675 (2013).
175. In a number of ways, parties to a case, especially those cases that end
up before the Court, are unique characters in a novel dedicated to their special
story; in equally important ways, however, these unique characters often come
to personify larger movements whose history requires volumes. Some of these
stories are transformed into best-sellers and are seared into our national
collective consciousness—e.g. the story of William Marbury and his commission,
the story of Ernesto Miranda and his encounter with the law, and the story of
Mary Beth Tinker and her black arm band. Others, notorious in nature, find
their way to the dusty bin of historical accidents and embarrassing mistakes—
e.g. the story of Dred Scott and his citizenship; the story of Homer Plessy and
his presence in the “whites only” train car; the story of thousands of Japanese
Americans and their internment on American soil. See (in order of reference)
Marbury v. Madison, 5 U.S. 137 (1803); Miranda v. Arizona, 384 U.S. 436
(1966); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Dred
Scott v. Sandford, 60 U.S. 393 (1857); Plessy v. Ferguson, 163 U.S. 537 (1896);
Korematsu v. United States, 323 U.S. 214 (1944).
176. Greg Botelho, Victory for Lesbian, Years After Her Longtime Partner’s
262
2013—2014]
Toward “Liberty”
1960s.177 With the love they shared for one another, no obstacle
life threw at them could tear them apart—not even the
devastating news Thea received in 1977, at the age of forty-five,
that she had multiple sclerosis.178 Throughout the years, there
were ups and there were downs.179 Because of Thea’s declining
health, Edith eventually became Thea’s full-time caregiver.180
With 2007 came the dreaded, yet not unexpected, news that Thea
was dying and had at most one year to live.181 Realizing their
time together was growing short, Edith asked Thea if she would
marry her; Thea said “yes.”182 The two traveled to Canada to get
married, and it was the happiest day of their lives.183
Thea lived nearly two more years after she and Edith wed.184
After Thea passed away, Edith received the inheritance Thea left
for her in her will.185 Out of this money, Edith was required to
pay the federal government $363,053.00 in inheritance taxes—
taxes that she would not otherwise have had to pay had Thea
been a man.186 In order to afford the whopping tax bill and
because she was on a fixed income, Edith was forced to sell some
of her belongings just to sustain herself financially.187 Devastated
at how her government treated her, especially at such a
vulnerable and emotionally fraught time in her life, Edith
decided to take legal action.188
Death, CNN (June 26, 2013, 12:52 PM), http://www.cnn.com/2013/03/27/us/newyork-doma-windsor/index.html.
177. Windsor v. United States, 833 F. Supp. 2d 394, 397 (S.D.N.Y.), aff’d,
699 F.3d 169 (2d. Cir. 2012), aff’d, 570 U.S. ___, 133 S. Ct. 2675 (2013).
178. Adam Gabbatt, Edith Windsor and Thea Spyer: A Love Affair That
Just Kept On and On and On, THE GUARDIAN (June 26, 2013, 11:54 EDT),
http://www.theguardian.com/world/2013/jun/26/edith-windsor-thea-spyer-doma.
179. Botelho, supra note 176.
180. Gabbatt, supra note 178.
181. Id.
182. Id.
183. Id.
184. Id.
185. See id.
186. Id.
187. See Botelho, supra note 176; Gabbatt, supra note 178.
188. See Botelho, supra note 176; Gabbatt, supra note 178.
263
CHARLESTON LAW REVIEW
[Volume 8
In November 2010, Edith filed suit in federal district court
against the United States, claiming a refund in the amount of the
tax liability of $363,053.00 on the grounds that § 3 of DOMA is
unconstitutional.189 Three months later, Attorney General Holder
notified Speaker Boehner that the Executive Branch would no
longer defend § 3 because the President believed the provision
was likely unconstitutional.190 However, the Bipartisan Legal
Advisory Group (BLAG) took up DOMA’s defense in April 2011
and proceeded with the case.191 On June 6, 2012, United States
District Judge Barbara S. Jones held § 3 unconstitutional as a
violation of equal protection principles,192 and the Second Circuit
affirmed the ruling on October 18, 2012.193 Thereafter, BLAG and
the Department of Justice petitioned the Supreme Court for a
writ of certiorari,194 which the Court granted on December 7,
2012.195 On June 26, 2013, the last day of the Term, Justice
Kennedy announced the 5-4 decision affirming the Second Circuit
and declaring § 3 unconstitutional.196
C. Parsing The Opinion
Initially, it is necessary to note that Windsor is a case
implicating the Due Process Clause of the Fifth Amendment—not
the Due Process Clause of the Fourteenth Amendment.197 This
189. Windsor v. United States, 833 F. Supp. 2d 394, 397 (S.D.N.Y. 2012).
190. Letter to Speaker, supra note 171.
191. See United States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675, 2684
(2013) (“In response to the notice from the Attorney General, the Bipartisan
Legal Advisory Group (BLAG) of the House of Representatives voted to
intervene in the litigation to defend the constitutionality of § 3 of DOMA.”).
192. Windsor, 833 F. Supp. 2d at 400–02 (the equal protection discussion
begins at Part II.D, “Equal Protection”); accord Windsor v. United States, 699
F.3d 169, 176 (2d Cir. 2012) (noting that the district court “ruled that Section 3
of DOMA violated the [sic] equal protection because there was no rational basis
to support it.”).
193. Windsor, 699 F.3d at 170.
194. Petition for Writ of Certiorari, Windsor, 570 U.S. ___, 133 S. Ct. 2675.
195. SCOTUSBLOG, Proceedings and Orders, http://www.scotusblog.com/
care-filer/cares/windsor-v-united-states-2.
196. Windsor, 570 U.S. at ___, 133 S. Ct. at 2696.
197. Id. at ___, 133 S. Ct. at 2693 (“DOMA . . . violates basic due process and
equal protection principles applicable to the Federal Government.”) (citing U.S.
264
2013—2014]
Toward “Liberty”
distinction is critical for two reasons. First, the Fifth
Amendment, which applies directly to the federal government,
does not contain an equal protection clause like its counterpart in
the Fourteenth Amendment. Instead, the Court has read into the
Fifth Amendment’s Due Process Clause “the prohibition against
denying to any person the equal protection of the laws.”198
Second, knowledge of the Court’s use of this analytical
framework may cause some commentators to underemphasize
the Court’s “liberty” discussion, or even dismiss it as nothing
more than a doctrinally necessary means to arrive at an equal
protection discussion. With these clarifications as a preface, this
section of the article illustrates why Windsor is more properly
viewed as a liberty case199 rather than a pure equal protection
CONST. amend. V; Bolling v. Sharpe, 347 U.S. 497 (1954)).
198. Id. at ___, 133 S. Ct. at 2695 (citing Bolling, 347 U.S. at 499–500).
The Fifth Amendment, which is applicable in the District of Columbia,
does not contain an equal protection clause as does the Fourteenth
Amendment which applies only to the states. But the concepts of
equal protection and due process, both stemming from our American
ideal of fairness, are not mutually exclusive. The ‘equal protection of
the laws’ is a more explicit safeguard of prohibited unfairness than
‘due process of law,’ and, therefore, we do not imply that the two are
always interchangeable phrases. But, as this Court has recognized,
discrimination may be so unjustifiable as to be violative of due
process.
Bolling, 347 U.S. at 499–500.
199. So far in the wake of the tsunami of scholarly commentary on Windsor,
this author has found only one scholar, Professor Barnett of Georgetown
University Law Center, who has emphasized the importance of the Court’s
focus on “liberty.” Barnett, supra note 5.
In short, under Justice Kennedy’s reasoning, it is the fact that
states have recognized same-sex marriage that gives rise to
heightened judicial scrutiny (“Here the State’s decision to give this
class of persons the right to marry conferred upon them a dignity and
status of immense import.” (emphasis added)). In essence, state law is
being used to identify a protected liberty or right within its borders
against a federal statute. Although this converted our enumerated
powers argument into a protection of individual rights, at the same
time, it both relied on and preserved the states’ prerogatives to define
and protect liberty.
Id.
265
CHARLESTON LAW REVIEW
[Volume 8
case,200 an equal protection-federalism case,201 or a substantive
due process-federalism-equal protection case.202
Part of the confusion in any case, but particularly with an
opinion by Justice Kennedy, may stem from a genuine confusion
about what the Court is saying. 203 Even if the intent of the
opinion’s author is not to be cryptic, sometimes the style of
writing has that effect, as it arguably does in Windsor. Therefore,
what follows is this author’s attempt at both a summary and
synthesis of the opinion’s analysis in an effort to offer a more
direct and plain reading of an exceedingly important opinion.
***
Married same-sex couples share an equal status with their
married opposite-sex counterparts in a way that enables them to
live with dignity by permitting them to define themselves by
their commitment to one another.204 DOMA’s purpose and effect
must be evaluated in the context of these same-sex couples’
dignity, bestowed upon them by the State of New York.205
200. See, e.g., Miller W. Shealy, Jr., All in the Family, Almost . . . A Review
of the 2012-2013 U.S. Supreme Court Term, 25 S.C. LAWYER, Sept. 2013, at 39
(stating that “the Court holds DOMA to be a violation of equal protection.”). But
see id. at 41 (referring to Justice Scalia’s dissent and implying that Windsor
may also contain a substantive due process component).
201. UVA Law Professors, supra note 6 (commentary of Professor A.E. Dick
Howard) (“The key to understanding United States v. Windsor is to realize that
it rests on twin pillars — federalism and equal protection.”).
202. Windsor, 570 U.S. at ___, 133 S. Ct. at 2707 (Scalia, J., dissenting)
(“The sum of all the Court’s nonspecific hand-waving is that this law is invalid
(maybe on equal-protection grounds, maybe on substantive-due-process
grounds, and perhaps with some amorphous federalism component playing a
role . . . .”).
203. See Gerken, supra note 31, at 847 (referring to Justice Kennedy’s
“penchant for abstraction”).
204. Windsor, 570 U.S. at ___, 133 S. Ct. at 2689. (“[S]ome States concluded
that same-sex marriage ought to be given recognition and validity in the law for
those same-sex couples who wish to define themselves by their commitment to
each other. . . . New York, in common with, as of this writing, 11 other States
and the District of Columbia, decided that same-sex couples should have the
right to marry and so live with pride in themselves and their union and in a
status of equality with all other married persons.”).
205. Id. at ___, 133 S. Ct. at 2689 (“[It is] against this background of lawful
266
2013—2014]
Toward “Liberty”
Although the federal government may act in exercise of its
authority to regulate certain federal programs, it may not single
out a category of individuals and strip them of the benefits of not
one or two, but thousands of federal regulations.206 The limits of
the federal government’s reach into matters affecting domestic
relations are well known. Here, DOMA’s reach into the internal
affairs of a state is unprecedented, and its effect creates two
classes of lawfully married couples and withholds from one class
the benefits bestowed upon the other.207
Notwithstanding DOMA’s unprecedented infringement upon
a state’s internal determinations regarding who may receive
benefits incident to lawful marriage, this case is about much
more than federalism. Instead, DOMA’s marked departure from
our national history and tradition of reliance on state law to
define marriage amounts to that type of unusual discrimination,
as witnessed in Romer, that requires our careful consideration to
determine whether a law is obnoxious to the Constitution.208
same-sex marriage in some States, the design, purpose, and effect of DOMA
should be considered as the beginning point in deciding whether it is valid
under the Constitution.”).
206. Id. at ___, 133 S. Ct. at 2690 (“[W]hen the Federal Government acts in
the exercise of its own proper authority, it has a wide choice of the mechanisms
and means to adopt. Congress has the power both to ensure efficiency in the
administration of its programs and to choose what larger goals and policies to
pursue. . . . [However,] DOMA has a far greater reach; for it enacts a directive
applicable to over 1,000 federal statutes and the whole realm of federal
regulations. And its operation is directed to a class of persons that the laws of
New York, and of 11 other States, have sought to protect.”) (citation omitted).
207. Id. at ___, 133 S. Ct. at 2691–92 (“The recognition of civil marriages is
central to state domestic relations law applicable to its residents and citizens. . .
Consistent with this allocation of authority, the Federal Government, through
our history, has deferred to state-law policy decisions with respect to domestic
relations. . . . Against this background DOMA rejects the long-established
precept that the incidents, benefits, and obligations of marriage are uniform for
all married couples within each State, though they may vary, subject to
constitutional guarantees, from one State to the next.”).
208. Id. at ___, 133 S. Ct. at 2692 (“Here the State’s decision to give this
class of persons the right to marry conferred upon them a dignity and status of
immense import. When the State used its historic and essential authority to
define the marital relation in this way, its role and its power in making the
decision enhanced the recognition, dignity, and protection of the class in their
own community.”).
267
CHARLESTON LAW REVIEW
[Volume 8
Here, New York properly exercised its lawmaking function to
extend the rights and, most importantly, the status of civil
marriage to same-sex couples. New York’s marriage law creates
no separate classes, nor does it otherwise discriminate against or
distinguish between the sex of either of the two parties. In stark
contrast, DOMA rejects the dignity and equality that New York’s
marriage laws guarantee to its citizens, and this rejection in turn
makes two related statements. First, the federal government
tells New York it will not defer to that state’s sovereign decision
about which of its citizens are entitled to the rights, privileges,
and dignified status afforded by civil marriage. Second, the
federal government tells New York’s lawfully married same-sex
couples that their unions are inherently different than the unions
of opposite-sex couples and that this difference—the fact that
both individuals are of the same sex—justifies the federal
government’s creation of two classes of married citizens and its
resulting unequal treatment of these classes.209
Therefore, DOMA violates due process and equal protection
principles applicable to the federal government through the Fifth
Amendment, as interpreted by Bolling v. Sharpe and its
progeny.210 It does so by injuring a class of citizens that New
York has sought to, and in fact does, protect—the class of
lawfully married same-sex couples within its sovereign territory.
To withstand constitutional scrutiny, DOMA must be more than
a manifestation of Congress’s naked desire to harm a politically
unpopular group.211 For the reasons that follow, DOMA does not
209. Id. at ___, 133 S. Ct. at 2692 (“The Federal Government uses this statedefined class for the opposite purpose—to impose restrictions and disabilities.
That result requires this Court now to address whether the resulting injury and
indignity is a deprivation of an essential part of the liberty protected by the
Fifth Amendment. What the State of New York treats as alike the federal law
deems unlike by a law designed to injure the same class the State seeks to
protect.”).
210. Id. at ___, 133 S. Ct. at 2693 (“DOMA seeks to injure the very class
New York seeks to protect. By doing so it violates basic due process and equal
protection principles applicable to the Federal Government.”) (citing U.S.
CONST. amend. V; Bolling v. Sharpe, 347 U.S. 497 (1954)).
211. Id. (“The Constitution’s guarantee of equality ‘must at the very least
mean that a bare congressional desire to harm a politically unpopular group
cannot’ justify disparate treatment of that group. In determining whether a law
is motived by an improper animus or purpose, ‘[d]iscriminations of an unusual
268
2013—2014]
Toward “Liberty”
survive under either due process principles or equal protection
principles.212
DOMA’s principal purpose is to impose inequality, and its
principal effect is to identify a subset of state-sanctioned
marriages and make them unequal.213 Regarding its purpose of
imposing inequality, DOMA legislative history reveals three of
the legislation’s goals: (1) to express moral disapproval of
homosexuality, (2) to express a moral conviction that a
heterosexual lifestyle more closely aligns with Christian and
Jewish concepts of morality, and (3) to promote traditional
heterosexual marriage laws.214 How DOMA actually operates
underscores its purpose. DOMA writes inequality into the entire
United States Code at the same time that some states’ marriage
laws seek to eliminate inequality. The various federal statutes
and regulations that DOMA touches upon involve several
different and wholly unrelated areas of federal law, including
criminal sanctions, copyright law, housing rights, taxes, veterans’
benefits, and Social Security. Even while targeting virtually the
character’ especially require careful consideration.”) (quoting Romer v. Evans,
517 U.S. 620, 633 (1996)) (citation omitted).
212. Id. (“DOMA seeks to injure the very class New York seeks to protect.
By doing so it violates basic due process and equal protection principles
applicable to the Federal Government.”) (citing U.S. CONST. amend. V; Bolling
v. Sharpe, 347 U.S. 497 (1954)).
213. Id. at ___, 133 S. Ct. at 2694 (“DOMA’s principal effect is to identify a
subset of state-sanctioned marriages and make them unequal. The principal
purpose is to impose inequality . . . “)
214.
The House Report announced its conclusion that “it is both
appropriate and necessary for Congress to do what it can to defend the
institution of traditional heterosexual marriage. . . . H.R. 3396 is
appropriately entitled the ‘Defense of Marriage Act.’ The effort to
redefine ‘marriage’ to extend to homosexual couples is a truly radical
proposal that would fundamentally alter the institution of marriage.”
The House concluded that DOMA expresses “both moral disapproval
of homosexuality, and a moral conviction that heterosexuality better
comports with traditional (especially Judeo-Christian) morality.” The
stated purpose of the law was to promote an “interest in protecting the
traditional moral teachings reflected in heterosexual only-marriage
laws.”
Id. at ___, 133 S. Ct. at 2693 (citations omitted).
269
CHARLESTON LAW REVIEW
[Volume 8
entire Code, DOMA still fails to identify a connection to any
particular area of federal law.215
Regarding its effect of identifying same-sex couples and
making them unequal, DOMA assures that lawfully married
same-sex couples will be relegated to second-class status for
purposes of federal law.216 DOMA accomplishes this goal by
depriving same-sex couples of rights and responsibilities
attendant to marriage and which enhance an individual’s dignity
and integrity.217 This deprivation, in turn, leaves these couples
married in the eyes of their state but unmarried in the eyes of
the federal government.218 Moreover, the dual reality of being
recognized by one sovereign as married but by the other as
unmarried leads to three results: (1) it places same-sex couples in
an unstable position of being in a second-tier marriage; (2) it
demeans the couples who are at liberty to make their own moral
215.
DOMA’s operation in practice confirms this purpose. When New York
adopted a law to permit same-sex marriage, it sought to eliminate
inequality; but DOMA frustrates that objective through a system-wide
enactment with no identified connection to any particular area of
federal law. DOMA writes inequality into the entire United States
Code. The particular case at hand concerns the estate tax, but DOMA
is more than a simple determination of what should or should not be
allowed as an estate tax refund. Among the over 1,000 statutes and
numerous federal regulations that DOMA controls are laws pertaining
to Social Security, housing, taxes, criminal sanctions, copyright, and
veterans’ benefits.
Id. at ___, 133 S. Ct. at 2694.
216. Id. at ___, 133 S. Ct. at 2693–94 (“The Act’s demonstrated purpose is
to ensure that if any State decides to recognize same-sex marriages, those
unions will be treated as second-class marriages for purposes of federal law.”).
217. Id. at ___, 133 S. Ct. at 2681 (“DOMA’s history of enactment and its
own text demonstrate that interference with the equal dignity of same-sex
marriages, conferred by the States in the exercise of their sovereign power, was
more than an incidental effect of the federal statute. It was its essence.”); id. at
___, 133 S. Ct. at 2681 (“By this dynamic DOMA undermines both the public
and private significance of state-sanctioned same-sex marriages; for it tells
those couples, and all the world, that their otherwise valid marriages are
unworthy of federal recognition.”).
218. Id. at ___, 133 S. Ct. at 2694 (“By creating two contradictory marriage
regimes within the same State, DOMA forces same-sex couples to live as
married for the purpose of state law but unmarried for the purpose of federal
law . . . .”).
270
2013—2014]
Toward “Liberty”
and sexual choices within the same relationship the state sought
to dignify; and (3) it humiliates and confuses the children of
married same-sex couples who view their family in the context of
all other families in their community.219 Finally, these couples
are precluded from enjoying a wide range of federal protections
and benefits—ranging from the mundane to the profound. The
preclusion also extends to the couples’ children and family
members.220
The same power that the Constitution grants, it restrains.
And while Congress has great authority to legislate according to
its own understanding of sound national policy, it cannot pass a
law that denies the liberty safeguarded by the Due Process
Clause of the Fifth Amendment.221 Because its principal purpose
and necessary effect are to demean lawfully married same-sex
couples, DOMA deprives these couples of the liberty of persons
protected by the Due Process Clause of the Fifth Amendment.
Furthermore, because DOMA’s deprivation of liberty flows from
its denial to same-sex couples of the equal protection of the laws,
the Equal Protection Clause of the Fourteenth Amendment, as
applied through the Due Process Clause of the Fifth Amendment,
makes the liberty interest threatened in this case all the more
poignant and its protection all the more important.222
219. Id. (“The differentiation demeans the couple, whose moral and sexual
choices the Constitution protects, and whose relationship the State has sought
to dignify. And it humiliates tens of thousands of children now being raised by
same-sex couples. The law in question makes it even more difficult for the
children to understand the integrity and closeness of their own family and its
concord with other families in their community and in their daily lives.”)
(citation omitted).
220. Id. at ___, 133 S. Ct. at 2694–95 (see list of activities that same-sex
couples are precluded from enjoying as illustrated by the Court).
221. Id. at ___, 133 S. Ct. at 2695 (“The power the Constitution grants it
also restrains. And though Congress has great authority to design laws to fit its
own conception of sound national policy, it cannot deny the liberty protected by
the Due Process Clause of the Fifth Amendment.”).
222. Id. (“This requires the Court to hold, as it now does, that DOMA is
unconstitutional as a deprivation of the liberty of the person protected by the
Fifth Amendment of the Constitution. The liberty protected by the Fifth
Amendment’s Due Process Clause contains within it the prohibition against
denying to any person the equal protection of the laws. While the Fifth
Amendment itself withdraws from Government the power to degrade or demean
in the way this law does, the equal protection guarantee of the Fourteenth
271
CHARLESTON LAW REVIEW
[Volume 8
***
D. Windsor is a Liberty Case
Before discussing why Windsor is a liberty case, the following
paragraphs will address why Windsor is neither a traditional
equal protection case nor a traditional substantive due process
case.
Windsor is not an equal protection case in the traditional
sense—even of the Romer variety223—for two reasons. First, there
is no discussion whatsoever about whether homosexuals
generally or same-sex couples specifically belong to a suspect
class such that “heightened” scrutiny applies. There also is no
discussion on the related question of which level of constitutional
scrutiny should apply—rational basis, rational basis “with a
bite,” intermediate, or strict.224 Moreover, while the Court cites to
Romer in its discussion about the “improper animus or
Amendment makes that Fifth Amendment right all the more specific and all the
better understood and preserved.” (citation omitted).
223. Romer v. Evans, 517 U.S. 620 (1996), authored by Justice Kennedy,
does not create a new suspect classification (i.e., sexual orientation), so the
proper standard of review is “rational basis,” meaning that the law in question
is presumed constitutional and will be upheld if it is a reasonable means to a
legitimate end. Of all of the levels of scrutiny, the rational basis test is the most
deferential to the government. See Rational Basis Test, CORNELL UNIV. L. SCH.
LEGAL INFO. INST. (Aug. 19, 2010, 5:23 PM), http://www.law.cornell.edu/wex/
rational_basis_test. However, without identifying a fundamental right (which
would trigger heightened scrutiny), Romer nonetheless applies what has come
to be called rational basis “with a bite,” which is essentially a level of scrutiny
higher than rational basis but not quite as demanding as intermediate scrutiny.
For a well-written explanation on the differences between rational basis and
rational basis “with a bite,” see Kenji Yoshino, Why the Court can strike down
marriage restrictions under rational-basis review, SCOTUSBLOG (Aug. 23, 2011,
8:38 AM), www.scotusblog.com/2011/08/why-the-court-can-strike-downmarriage-restrictions-under-rational-basis-review.
224. Cf. Windsor, 570 U.S. at ___, 133 S. Ct. at 2706 (Scalia, J., dissenting)
(“The only possible interpretation of this statement [i.e., the majority’s
statement about the Fifth Amendment itself taking away the federal
government’s ability to discriminate in this case, aside from the Equal
Protection Clause of the Fourteenth Amendment] is that the Equal Protection
Clause, even the Equal Protection Clause as incorporated in the Due Process
Clause, is not the basis for today’s holding.”).
272
2013—2014]
Toward “Liberty”
purpose”225 behind DOMA, the Court goes no further to extend
Romer’s pure equal protection analysis. Second, as explained
above, the Court’s reference to Bolling is significant not because
of Bolling’s obvious holding (that the Fourteenth Amendment’s
Equal Protection Clause applies to the federal government
through the Fifth Amendment’s Due Process Clause),226 but
because of the Bolling Court’s emphasis on liberty as the
ultimate value that each Clause protects.227 Indeed, there are
numerous other cases—all of them newer than Bolling—to which
the Court could have cited if its purpose had been simply to cite a
rule and move on.228
Additionally, Windsor is not a substantive due process case
in the traditional sense. To begin with, the conclusion that
Windsor is not a substantive due process case in the traditional
sense is true only if one agrees that Casey and Lawrence—as
contrasted with Bowers and Glucksberg—are at least nontraditional substantive due process cases, and at most, a new
jurisprudential branch entirely. Reasonable minds—including
the Justices themselves—disagree about whether the “rooted in
history and traditions” test applied in Bowers and Glucksberg is
still the proper framework for evaluating a substantive due
process claim. After all, Casey, with its focus on liberty,229 was
decided in 1992. However, Glucksberg, returning to the Bowersbrand of “rooted in history and traditions,” was decided a scant
five years later, and yet it limited and distinguished Casey.230
225. Id. at ___, 133 S. Ct. at 2692 (majority opinion) (quoting Romer, 517
U.S. at 633) (“[D]iscriminations of an unusual character especially suggest
careful consideration to determine whether they are obnoxious to the
constitutional provision.”) (internal quotation marks omitted).
226. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995)
(plurality opinion) (noting that the Court’s cases decided since at least 1964
“treat the equal protection obligations imposed by the Fifth and the Fourteenth
Amendments as indistinguishable”) (quoting Kenneth Karst, The Fifth
Amendment’s Guarantee of Equal Protection, 55 N.C. L. REV. 541, 554 (1997),
“‘[i]n case after case, fifth amendment equal protection problems are discussed
on the assumption that fourteenth amendment precedents are controlling.’”).
227. See Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954).
228. Lawrence v. Texas, 539 U.S. 508 (2003); Planned Parenthood of Se. Pa.
v. Casey, 505 U.S. 883 (1992).
229. The word liberty is mentioned forty-seven times in the opinion.
230. Washington v. Glucksberg, 521 U.S. 702, 727 (1997) (“That many of the
273
CHARLESTON LAW REVIEW
[Volume 8
Then, a mere six years after Glucksberg, Lawrence framed the
issue in the broad liberty terms that Casey employed and
Glucksberg was shunned—all without so much as a “see also”
acknowledging Glucksberg’s existence.231 Assuming, as this
article does, that Glucksberg represents the traditional view of
substantive due process, Lawrence is at least a non-traditional
substantive due process case. Therefore, if Windsor is anything
at all, it is either a non-traditional, Lawrence-brand substantive
due process case or the newest addition to the Court’s distinct
lineage of liberty cases. Moreover, whether Windsor is considered
a new flavor of substantive due process or a new flavor of theory
entirely is irrelevant; all that matters is the concept that informs
the Court’s framing of the issue—liberty. It is the concept of
liberty that informs how the Court frames and then addresses a
particular issue, and this concept is not easily susceptible of the
black-letter law outlining about which law students are
understandably concerned.
Windsor is a liberty case—the most recent in a lineage
originating with Casey and continuing with Lawrence. As stated
at the beginning of this article, a liberty case is one in which the
Court borrows from either or both substantive due process and
equal protection principles to decide whether a law improperly
intrudes upon that sphere of autonomy belonging to every citizen
and containing within its bounds life’s most intimate decisions,
actions, and relationships.232 The melding of equal protection and
due process principles is key to the Court’s holding, and neither
principle alone sufficiently explains the opinion’s reasoning.
Citing to the Fifth Amendment and Bolling v. Sharpe,233 the
Court states that DOMA “violates basic due process and equal
rights and liberties protected by the Due Process Clause sound in personal
autonomy does not warrant the sweeping conclusion that any and all important,
intimate, and personal decisions are so protected . . . .”).
231. Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting) (“I
do not quarrel with the Court’s claim that [Romer] ‘eroded’ the ‘foundations’ of
Bowers’ rational-basis holding. But Roe and Casey have been equally ‘eroded’ by
[Glucksberg].” (internal citations omitted)).
232. See supra Part.II.
233. 347 U.S. 497 (1954).
274
2013—2014]
Toward “Liberty”
protection principles . . . .”234 The citation to Bolling is important
for two reasons. First, like Windsor, Bolling involved the
intersection of due process and equal protection principles in the
context of an individual’s challenge to a federal statute.235
Second, the opinion contains key language explaining the Court’s
understanding of the relationship between the two principles and
how each is but one aspect of the overarching concept of liberty:
[T]he concepts of equal protection and due process, both
stemming from our American ideal of fairness, are not
mutually exclusive. The “equal protection of the laws” is a more
explicit safeguard of prohibited unfairness than “due process of
law,” and . . . the two are [not] always interchangeable phrases.
But, as this Court has recognized, discrimination may be so
unjustifiable as to be violative of due process.236
....
Although the Court has not assumed to define “liberty” with
any great precision, that term is not confined to mere freedom
from bodily restraint. Liberty under law extends to the full
range of conduct which the individual is free to pursue, and it
cannot be restricted except for a proper governmental
objective.237
After concluding that DOMA violates the liberty protected by
the Fifth Amendment, the Court goes a step further to explain
why the case centers on liberty instead of resting exclusively on
either equal protection or due process principles: “While the Fifth
Amendment itself withdraws from Government the power to
degrade or demean in the way this law does, the equal protection
guarantee of the Fourteenth Amendment makes that Fifth
Amendment right all the more specific and all the better
understood and preserved.”238 In rejoinder to this particular
234. United States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675, 2693
(2013) (emphasis added) (“DOMA seeks to injure the very class New York seeks
to protect. By doing so it violates basic due process and equal protection
principles applicable to the Federal Government.”).
235. Bolling, 347 U.S. at 498–99.
236. Id. at 499.
237. Id. at 499–500.
238. Windsor, 570 U.S. at ___, 133 S. Ct. at 2695.
275
CHARLESTON LAW REVIEW
[Volume 8
sentence in the majority’s opinion, Justice Scalia quipped,
“[W]hat can that mean?”239 Justice Scalia’s point—minus the
sarcasm—is well taken. Justice Scalia’s sentence is cryptic, but
easily decoded.
One way is to translate Justice Scalia’s sentence using logic
from the opinion itself: DOMA’s unequal treatment of same-sex
couples relegates them to second-class status by depriving them
of the marriage-related rights and responsibilities given to
opposite-sex couples (equal protection issue);240 and because the
sole reason behind the law’s deprivation is a morality-based
refusal to acknowledge these couples’ state-sanctioned marriages,
the federal government violates these couples’ liberty interest
(i.e. in making their own moral decision to marry)241 by imposing
its own value judgment on the couples’ relationship in a way that
lessens the individuals’ dignity, questions their integrity,
demeans them, and humiliates their children (substantive due
process).242 More crudely stated: DOMA violates equal protection
239. Id. at ___, 133 S. Ct. at 2706 (Scalia, J., dissenting). Justice Scalia, in
typical snarky fashion, is drawing attention to what he believes is the Court’s
surreptitious reliance on substantive due process while citing to cases he
believes are purely equal protection cases. Id. (noting that the cases to which
the Court cites—Bolling, Moreno, and Romer—are all equal protection cases).
Because Justice Scalia believes these three cases are all equal protection cases,
and because the Court fails to engage in a traditional equal protection analysis,
he believes the Court really is supporting its argument using substantive due
process without actually saying so. Id. (“The majority never utters the dread
words ‘substantive due process,’ . . . but that is what [its] statements mean.”).
240. Id. at ___, 133 S. Ct. at 2693–94 (majority opinion) (“The Act’s
demonstrated purpose is to ensure that if any State decides to recognize samesex marriages, those unions will be treated as second-class marriages for
purposes of federal law.”).
241. Id. at ___, 133 S. Ct. at 2694 (“The differentiation demeans the couple,
whose moral and sexual choices the Constitution protects . . . .”). In context, and
based especially on its location in the opinion’s paragraph, this sentence
unequivocally implies that the choice to marry is one of the choices that the
Constitution protects.
242. Id. at ___, 133 S. Ct. at 2694.
The differentiation demeans the couple, whose moral and sexual choices the
Constitution protects [citing Lawrence], and whose relationship the State has
sought to dignify. And it humiliates tens of thousands of children now being
raised by same-sex couples. The law in question makes it even more difficult for
the children to understand the integrity and closeness of their own family and
its concord with other families in their community and in their daily lives. Id.
276
2013—2014]
Toward “Liberty”
principles because it treats same-sex couples differently for no
good reason, and it violates due process principles because this
no good reason demeans and rejects one of the most personal
choices an individual can make in a lifetime: Whom one chooses
to marry.
V. WHY LIBERTY MATTERS FOR THE LOVING OF OUR
TIME
Justice Cooley once remarked that the purpose of the state’s
police powers is:
[T]o establish for the intercourse of citizen with citizen those
rules of good manners and good neighborhood which are
calculated to prevent a conflict of rights, and to insure to each
the uninterrupted enjoyment of his own, so far as is reasonably
consistent with a like enjoyment of rights by others. 243
The world has changed since Cooley’s treatise debuted in
1868. The country has increased in size and has become more
pluralistic than at any point in our history. And although the
specific changes that have occurred could not have been known
by the Framers of the Fifth and Fourteenth Amendments, the
inevitability of change was not just on their minds while drafting
the Constitution—it was the reason for the document in the first
place.244 Moreover, although the framers possessed an
understanding of liberty and its manifold philosophical
implications, even they were cautious not to declare its bounds in
specific terms. As Justice Harlan reminded us, the concept of
liberty is not a collection of neatly marked points on a graph;
instead, “[i]t is a rational continuum which, broadly speaking,
243. Barnett, Police Power, supra note 61, at 479 (citing COOLEY, supra note
60, at 572). Indeed, the purpose of the government’s police powers, as Professor
Barnett notes, is to proactively prevent the type of actions that infringe on other
citizens’ rights and thereby tip a state’s powers of adjudication. Thus, a state
exercises its sovereign powers for two separate yet interrelated purposes: to
legislate to prevent a violation and to adjudicate if a violation occurs. See id.
244. See, e.g., Robert J. Pushaw, Jr., Methods of Interpreting the Commerce
Clause: A Comparative Analysis, 55 ARK. L. REV. 1185, 1196–95 (2003) (offering
a general critique of originalism and noting that “many framers themselves did
not intend that their subjectively attached meaning would control forever.”).
277
CHARLESTON LAW REVIEW
[Volume 8
includes a freedom from all substantial arbitrary impositions and
purposeless restraints,. . . and which also recognizes, what a
reasonable and sensitive judgment must, that certain interests
require particularly careful scrutiny of the state needs asserted
to justify their abridgment.”245
Criticizing Justice Kennedy’s portion of the Casey opinion,
Professor Eric Posner stated that “[a]bstract propositions about
human values cannot decide cases.”246 Similar to the Court’s own
jurisprudence, how an issue is framed oftentimes reflects the
drafter’s fundamental misunderstanding of the issue or, more
cynically, purposeful attempt at framing the issue in such a way
to arrive at a certain result. It is unclear which of these
observations best describes Professor Posner’s statement, but we
will assume it is the former. If that is the case, and Professor
Posner’s assertion is the issue, then this author is in agreement
wholeheartedly: The Court should not use its own “[a]bstract
propositions about human values” to decide cases.247 But that is
not the issue, at least so far as the Court’s liberty jurisprudence
makes clear. Instead, the issue has always been and will
continue to be who—the individual or the government—may
decide a deeply personal issue implicating the most serious
human values.
The Constitution is a boundaries document; it draws general
lines separating where the government may go and where it is
forbidden, and it is the role of all three departments within state
245. Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting from
dismissal on jurisdictional grounds). Professor Tribe refers to the tendency to
reduce substantive due process to a scavenger hunt through history and the
Constitution’s text as the “‘Trivial Pursuit’ version of . . . due process.” Tribe,
Fundamental Right, supra note 1, at 1936.
Lawrence’s focus on the role of self-regulating relationships in
American liberty suggests that the “Trivial Pursuit” version of the due
process “name that liberty” game arguably validated by Glucksberg
has finally given way to a focus on the underlying pattern of selfgovernment (rather than of state micromanagement) defined by the
rights enumerated or implicit in the Constitution or recognized by the
landmark decisions construing it.
Id.
246. Posner, supra note 41.
247. Id.
278
2013—2014]
Toward “Liberty”
and the federal government to legislate, enforce, and adjudicate
respecting those lines.248 Because the framers realized the
limitations of their minds, they intentionally omitted the
enumeration of all rights. The framers left that solemn duty to
the federal government generally and, more specifically, to the
branch that is most removed from the political fray and best
positioned to give meaning to these boundaries, to determine
their outermost reach, and to prevent the government’s trespass
into a citizen’s sphere of liberty.249
When equal protection and due process of law remain rooted
in the discussion of liberty—more specifically, what liberty
means now and has always meant—then the discussion is no
longer about a fatuous theory that critics like Professor Posner
summarily dismiss as the jurisprudential equivalent of an errant
hot air balloon.250 Instead, the discussion floats back to earth,
where it belongs, and roots itself in the most fundamental
understanding of the inherent limitations on government’s
authority in relation to those activities and life choices that find
their peak expression in the non-theoretical world of consensual,
adult, and human relationships. This sphere of activities and
choices must remain free from the state’s intrusion if the limited
purpose of government is to have any meaning at all.
* * *
Within the next few Terms, the Court likely will face head-on
the question of whether state laws prohibiting same-sex
marriage violate the Fourteenth Amendment. Already, courts are
reading Windsor expansively,251 and the litigation will only
248. See Planned Parenthood of Se. Pa., 506 U.S. 833, 851 (1992).
249. See Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (explaining the
intent of the framers).
250. Posner, supra note 41.
251. See Dale Carpenter, VA Must Extend Benefits to Married Same-Sex
Couples, District Court Says, VOLOKH CONSPIRACY (Aug. 30, 2013, 3:25 PM),
http://www.volokh.com/2013/08/30/va-must-extend-benefits-married-sexcouples/ (“So far, in contrast to their almost open resistance to Lawrence v.
Texas, lower federal courts are also reading the decision expansively.”).
279
CHARLESTON LAW REVIEW
[Volume 8
increase in Windsor’s wake.252 Most recently, at least one state
attorney general has declared her intent not to defend her state’s
same-sex marriage ban.253 Justice Scalia is quite correct to note
that it is only a matter of time before the “other shoe” drops. 254
Indeed, we are listening for the Loving of our time.255
The Court is no stranger to marriage equality. In Loving v.
Virginia,256 the Court addressed whether Virginia’s antimiscegenation law violated either the Equal Protection or Due
Process Clause of the Fourteenth Amendment.257 In holding that
the law violated both clauses, the Court went beyond its equal
protection analysis to reach the law’s interference with
individual liberty:
Marriage is one of the “basic civil rights of man,” . . . [and] [t]o
deny this fundamental freedom on so unsupportable a basis as
the racial classifications embodied in these statutes,
classifications so directly subversive of the principle of equality
at the heart of the Fourteenth Amendment, is surely to deprive
all the State’s citizens of liberty without due process of law.
The Fourteenth Amendment requires that the freedom of
choice to marry not be restricted by invidious racial
discriminations. Under our Constitution, the freedom to marry,
252. See Julia Cheever, Two Attorneys Predict Explosion of Litigation on
Same-Sex Marriage in Wake of Supreme Court Rulings, SAN JOSE MERCURY
NEWS, Aug. 10, 2013, http://www.mercurynews.com/samesexmarriage/ci_
23835415/two-attorneys-predict-explosion-litigation-same-sex-marriage.
253. See Juliet Eilperin, Pa. Attorney General Says She Won’t Defend State’s
Gay Marriage Ban, WASH. POST (July 11, 2013, 1:04 PM),
http://www.washingtonpost.com/blogs/post-politics/wp/2013/07/11/sources-paattorney-general-wont-defend-states-gay-marriage-ban/;
Sara
Ganim,
Pennsylvania Judge Orders Clerk to Obey Same-Sex Marriage Ban, CNN (Sept.
12, 2013, 4:32 PM), http://www.cnn.com/2013/09/12/us/pennsylvania-same-sexmarriage/index.html.
254. This colorful metaphor belongs, of course, to Justice Scalia. United
States v. Windsor, 570 U.S. ___, ___, 133 S. Ct. 2675, 2710 (2013) (Scalia, J.,
dissenting) (“As far as this Court is concerned, no one should be fooled; it is just
a matter of listening and waiting for the other shoe.”).
255. Tribe, Fundamental Right, supra note 1, at 1951 (“Just as the Loving
Court came to realize that racial boundaries cannot define such a relationship,
so this Court ought to come to a similar conclusion with respect to sexual
orientation.”).
256. 388 U.S. 1 (1967).
257. Id. at 2.
280
2013—2014]
Toward “Liberty”
or not marry, a person of another race resides with the
individual and cannot be infringed by the State. 258
If this language sounds familiar, it should:
[DOMA’s] demonstrated purpose is to ensure that if any State
decides to recognize same-sex marriages, those unions will be
treated as second-class marriages for purposes of federal law. .
. .What has been explained to this point should more than
suffice to establish that the principal purpose and the
necessary effect of this law are to demean those persons who
are in a lawful same-sex marriage. . . . While the Fifth
Amendment itself withdraws from Government the power to
degrade or demean in the way this law does, the equal
protection guarantee of the Fourteenth Amendment makes
that Fifth Amendment right all the more specific and all the
better understood and preserved.259
Loving is a liberty case.260 Not satisfied with just an equal
protection analysis, the Loving Court explained why the
magnitude of the equal protection violation made the liberty
deprivation all the more obvious.261 The Windsor Court did
precisely the same thing because it had Loving in mind. For
example, in the middle of the opinion, the Court cites to Loving
itself for the proposition that “[s]tate laws defining and
regulating marriage, of course, must respect the constitutional
rights of persons . . . .”262 It is that clause that makes the
following variation of Loving’s liberty analysis nearly inevitable:
Marriage is one of the “basic civil rights of man,” . . . [and state
laws defining and regulating marriage . . . must respect the
constitutional rights of persons.]263 To deny this fundamental
freedom on so unsupportable a basis as the racial [improper
animus and purpose] classifications embodied in these statutes
[State X’s constitution/statute], classifications [animosity] so
directly subversive of the principle of equality at the heart of
258.
259.
260.
261.
262.
263.
Id. at 12.
Windsor, 570 U.S. at ___, 133 S. Ct. at 2693, 2695.
See Loving, 388 U.S. 1.
Id. at 12.
Windsor, 570 U.S. at ___, 133 S. Ct. at 2691.
Id. (citing Loving, 388 U.S. 1).
281
CHARLESTON LAW REVIEW
[Volume 8
the Fourteenth Amendment, is surely to deprive all the State’s
citizens of liberty without due process of law. The Fourteenth
Amendment requires that the freedom of choice to marry not
be restricted by invidious racial discriminations [“of an
unusual character”].264 Under our Constitution, the freedom to
marry, or not marry, a person of another race [the opposite or
same sex]265 resides with the individual, and cannot be
infringed by the State.266
Admittedly, the Court may well wait to grant certiorari until
society has warmed up to the idea of same-sex marriage and
more states legalize it. But that time is nearer than some think.
As of the printing of this Article, same-sex marriage is lawful
in seventeen jurisdictions and unlawful in thirty-three.267 More
than 41% of the country’s population lives in a jurisdiction “with
either marriage or a broad legal status such as civil union or
domestic partnership.”268 Furthermore, in just eleven months,
the number of jurisdictions that allow same-sex marriage jumped
from ten to seventeen.269 Of the seventeen jurisdictions where
264. Id. at ___, 133 S. Ct. at 2692 (quoting Romer v. Evans, 517 U.S. 620,
633 (1996)).
265. See id. at ___, 133 S. Ct. at 2692 (quoting Lawrence v. Texas, 539 U.S.
558, 567 (2003) (“Private, consensual sexual intimacy between two adult
persons of the same sex may not be punished by the State, and it can form “but
one element in a personal bond that is more enduring.”)).
266. This paragraph is from Loving, 388 U.S. at 12.
267. Where State Laws Stand, FREEDOM TO MARRY, http://www.freedom
tomarry.org/pages/where-state-laws-stand (last visited Nov. 9, 2013). The 17
jurisdictions where same-sex marriage is legal include: California, Connecticut,
Delaware, District of Columbia, Hawaii, Illinois (law takes effect June 1, 2014),
Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New
Jersey, New York, Rhode Island, Vermont, and Washington. Id. The following
33 jurisdictions have laws prohibiting marriage: Alabama, Alaska, Arizona,
Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kansas,
Kentucky, Louisiana, Michigan, Missouri, Mississippi, Montana, North
Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South
Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Nevada,
Nebraska, Oregon, and Wyoming. Id.
268. States, FREEDOM TO MARRY, http://www.freedomtomarry.org/states/
(last visited Nov. 9, 2013).
269. Compare id. (showing that, as of November 29, 2013, 17 jurisdictions
have legalized same-sex marriage), with Daniel J. Crooks III, Same-sex
marriage and the Supreme Court, SLANTED NEWS ONLINE (Dec. 7, 2012),
http://www.slantednewsonline.com/?p=322 (noting that, as of December 7, 2012,
282
2013—2014]
Toward “Liberty”
same-sex marriage is legal, five states legalized it through court
decisions,270 eight states and the District of Columbia through
legislative action,271 and three states by popular vote.272 There is
no doubt that support for same-sex marriage is on the rise
throughout the country.273 A recent Gallup poll shows that 52%
support a law legalizing same-sex marriage throughout the
country, while only 43% of the poll’s participants indicated that
they oppose such a law.274 Other polls conducted in the weeks
prior to Perry and Windsor show a similar trend.275 It is also
9 states (CT, IA, MA, MD, ME, NH, NY, VT, WA) and the District of Columbia
allowed same-sex marriage).
270. 16 States with Legal Gay Marriage and 33 States with Same-Sex
Marriage Bans,” ProCon.org, http://gaymarriage.procon. org/view.resource.php?
resourceID=004857 (last visited Nov. 29, 2013) [hereinafter 16 States]. These
states are: California (June 28, 2013), Connecticut (Nov. 12, 2008), Iowa (Apr.
24, 2009), Massachusetts (May 17, 2004), New Jersey (Oct. 21, 2013). Id.
271. Id. The jurisdictions are: Delaware (July 1, 2013), Minnesota (Aug. 1,
2013), District of Columbia (Mar. 10, 2012), New Hampshire (Jan. 1, 2010),
New York (July 24, 2011), Rhode Island (Aug. 1, 2013), Vermont (Sept. 1, 2009).
Id.
272. Id. The jurisdictions are: Maine (Dec. 29, 2012), Maryland (Jan. 1,
2013), Washington (Dec. 9, 2012). Id.
273. See Lydia Saad, In U.S., 52% Back Law to Legalize Gay Marriage in 50
States, GALLUP POL. (July 29, 2013), http://www.gallup.com/poll/163730/backlaw-legalize-gay-marriage-states.aspx (“52% [of those polled] would vote for a
federal law legalizing same-sex marriages in all 50 states, and 54% think gay
marriages should be recognized as valid, with the same rights as marriages
between men and women.”); see also Frank Newport, Half of Americans Support
Legal Gay Marriage, GALLUP POL. (May 8, 2012), http://www.gallup.com/poll/
154529/half-americans-support-legal-gay-marriage.aspx.
274. See sources cited supra note 273; see also Gallup Gay Marriage Poll
Finds Majority of U.S. Citizens Would Support Nationwide Marriage Equality
Law, HUFFINGTON POST (July 31, 2013), http://www.huffingtonpost.com/2013/
07/31/gallup-gay-marriage-poll-_n_3682884.html (“[T]he majority of U.S.
residents want the nation’s lawmakers to go even further, a new survey has
found.”).
275. See Mark Murray, NBC/WSJ poll: 53 percent support gay marriage,
FIRST READ ON NBCNEWS.COM (Apr. 11, 2013, 11:58 PM), http://firstread.
nbcnews.com/_news/2013/04/11/17708688-nbcwsj-poll-53-percent-support-gaymarriage, (“Fifty-three percent of respondents favor allowing gay and lesbian
couples to marry, which is up 2 points since the . . . survey last asked this
question in December, though that increase is within the poll’s margin of
error.”); Gary Langer, Poll Finds Majority Acceptance of Gays From the B-ball
Court to the Boy Scouts, ABCNEWS (May 9, 2013, 12:01 AM), http://www.abc
news.go.com/blogs/politics/2013/05/poll-finds-majority-acceptance-of-gays-from-
283
CHARLESTON LAW REVIEW
[Volume 8
worth noting that the attitudes of Americans regarding
homosexuality in general and same-sex marriage in particular
have changed in an unprecedentedly short amount of time.276
Joining this ever-growing chorus of support for same-sex
marriage are prominent politicians from both sides of the aisle. 277
Among the more notable of these supporters are former President
Bill Clinton (D), former Vice President Dick Cheney (R), U.S.
Senator Rob Portman (R-Ohio), Utah’s Governor Jon Huntsman
(R), Vice President Joe Biden (D), and President Barack Obama
(D).278 Just three months after the first sitting Republican
Senator Rob Portman announced his support, two more sitting
Republican Senators joined the growing group of GOP
supporters: Mark Kirk of Illinois and Lisa Murkowski of
Alaska.279 Support for same-sex marriage on the national
political stage has led to speculation that Congress may take up
legislation to repeal DOMA within a year.280 Moreover, some
Executive Branch officials also have voiced support for DOMA’s
demise.281 Additionally, for the first time in our nation’s history,
the-b-ball-court-to-the-boy-scouts (showing 55% of those polled support samesex marriage, while 40% oppose it).
276. David Cole, Getting Nearer and Nearer, THE NEW YORK REVIEW OF
BOOKS (Jan. 10, 2013), http://www.nybooks.com/articles/archives/2013/jan/10/
getting-nearer-and-nearer (noting that the “gay rights movement . . . has
achieved, more swiftly than any other individual rights movement in history,
not merely the impossible, but the unthinkable.”).
277. See Alisa Wiersema, High-Profile Politicians Who Changed Their
Positions on Gay Marriage, ABC NEWS (Mar. 15, 2013), http://abcnews.go.com/
Politics/high-profile-politicians-changed-positions-gay-marriage/story?id=
18740293.
278. Id.
279. Molly Ball, Now There Are 3 Republican Senators Who Support Gay
Marriage, THE ATLANTIC (June 19, 2013, 1:49 AM), http://www.theatlantic.com/
politics/archive/2013/06/now-there-are-3-republican-senators-who-support-gaymarriage/277021/.
280. See id. (“A bill to repeal the 1996 Defense of Marriage Act could come
to a vote as soon as this year, according to Senator Kirsten Gillibrand. At an
event hosted by the center-left think tank Third Way on Tuesday, the New York
Democrat said such a bill was ‘very close to the 60 votes we need, closer than
people think.’”).
281. Press Release, Secretary of State John Kerry, Statement on Supreme
Court Ruling on the Defense of Marriage Act, U.S. DEP’T OF STATE (June 26,
2013), available at http://www.state.gov/secretary/remarks/2013/06/211214.htm
284
2013—2014]
Toward “Liberty”
a sitting President has unequivocally supported marriage
equality and federal efforts to repeal DOMA.282
VI. CONCLUSION
This article has sought to demonstrate why Windsor is best
understood as a Lawrence-brand “liberty” case distinct from the
Court’s traditional equal protection and substantive due process
precedents. This article has also argued that the focus on liberty
in Lawrence and Windsor leaves little doubt as to how the
currently composed Court would decide the ultimate question of
whether state laws proscribing same-sex marriage violate the
Constitution. As a final thought, it is appropriate to end this
Article with an observation that both echoes the sentiments
expressed in liberty cases and relates the concept of liberty to the
human experience.
Each of us, incident to living in a complex world as complex
beings, will encounter moral dilemmas that admit of no easy
solutions and philosophical questions that admit of no easy
answers. In addition to facing life’s more challenging moments,
we also face certain, more joyous choices that are uniquely
personal in nature. In response to all of these types of personal
decisions that are inextricably intertwined with the human
condition, we search within and without for guidance, love, and
support. Of course, our ruminations remain our own, for the
power of government does not extend to control our thoughts,
desires, feelings, philosophical perspectives or religious beliefs.
(press release of Secretary of State John Kerry) (“As a Senator, I voted against
DOMA in 1996 and argued that it was unconstitutional. As Secretary of State, I
look forward to the work that now can and must be done to adjust rules and
regulations that affect the many married Americans who were hurt by this
law.”).
282. Statement by the President on the Supreme Court Ruling on the Defense
of Marriage Act, THE WHITE HOUSE (June 26, 2013), http://www.whitehouse.gov/
doma-statement (“I applaud the Supreme Court’s decision to strike down the
Defense of Marriage Act. This was discrimination enshrined in law. It treated
loving, committed gay and lesbian couples as a separate and lesser class of
people. The Supreme Court has righted that wrong, and our country is better off
for it.”).
285
CHARLESTON LAW REVIEW
[Volume 8
And our otherwise lawful actions in furtherance of these things
must remain outside of the government’s purview, if we are to
retain that same liberty for whose perpetual safeguarding the
Constitution was drafted.
The decision to marry is one of modern society’s most
respected personal choices, and its most prized attributes exist
quite apart from the participants’ biological sex or societal
gender. That the Framers of the Constitution and its
amendments did not contemplate same-sex marriage is of no
moment. The story of American history and the story of
American constitutional law are twin epics whose plots
intertwine with one another in a way that makes the tale of each
together more meaningful and more true than the tale of either
alone. Linked together with the raw material of the human
experience, they, too, form a double helix. And when this
historical double helix is juxtaposed with Professor Tribe’s legal
double helix, we are left with the human experience on one side
and liberty on the other. Each informs the other, with the end
result being a Constitution whose durability and wisdom are
more completely understood the further away from its adoption
we progress. This same Constitution does not abide the violation
of its terms to placate the majority’s misgivings, no matter how
profound they may be. Nor is the full realization of liberty
subordinate to an artificial timeframe intended to minimize
society’s potential backlash. Now is the time for the Loving of our
time.
286