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Monday, January 9, 2017

Marriage Equality and Obergefell’s Generational (Not Glucksberg’s Traditional) Due Process Clause

by Ronald Turner Click here for a PDF file of this article

“Every age and generation must be as free to act for itself, in all cases, as the ages
and generation which preceded it.

In its landmark decision in Obergefell v. Hodges2 the United States Supreme
Court, by a 5-4 vote, held that “the right to marry is a fundamental right inherent
in the liberty of the person,”3 and that state laws depriving same-sex couples of
that right and liberty violate the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States Constitution.4
Much will be written in the coming months and years about the Court’s
decision and the views expressed and positions taken in the majority and
dissenting opinions. This essay focuses on one aspect of Obergefell: the majority’s
and dissents’ differing interpretations and applications of the Due Process
Clause. Justice Anthony M. Kennedy’s opinion for the Court is an exemplar of
due process generationalism. Under that methodology, the meaning and scope of
the liberty protected by the Due Process Clause is discerned and defined, not by
those who wrote and ratified the Fourteenth Amendment, but by “future
generations . . . protecting the right of all persons to enjoy liberty as we learn its
meaning.”5 Rejecting that approach, the dissenting Justices employed due process
traditionalism, a methodology in which the Due Process Clause is interpreted in
accordance with the nation’s deeply rooted and long-standing traditions and
history.6 As discussed herein, Obergefell’s generational liberty protects a same-sexcouple’s right to marry; that right would not be recognized under a liberty
principle grounded in and defined solely by reference to tradition.

Copyright © 2016 by Ronald Turner
* Alumnae Law Center Professor of Law, University of Houston Law Center. The author
acknowledges and is thankful for the research support provided by the Alumnae Law Center donors
and the University of Houston Law Foundation.

This monograph considers SCOTUS holding from several cases. We have herein (infra) provided a listing of the cases and principal legal issues. 

Bowers v. HardwickBowers v. Hardwick, 478 U.S. 186, 190 (1986).

wherein the Court rejected a
substantive due process challenge to a Georgia law criminalizing so-called
homosexual sodomy.” Justice Byron Raymond White’s opinion for a five-Justice
Court majority13 framed the issue for resolution as follows: “whether the Federal
Constitution confers a fundamental right upon homosexuals to engage in
sodomy and hence invalidates the laws of many States that still make such
conduct illegal and have done so for a very long time.”14

Washington v. GlucksbergWashington v. Glucksberg, 521 U.S. 702 (1997).

involved a challenge to a
Washington state law prohibiting assisted suicide. Writing for the Court, Chief
Justice William H. Rehnquist began his analysis with an examination of this
country’s history, legal traditions, and practices. “In almost every State—indeed,
in almost every Western democracy—it is a crime to assist a suicide.”24 He set
out various indicators of what he deemed to be the pertinent tradition: Anglo-
American common law tradition punished or disapproved of suicide and
assisted suicide for more than 700 years; the American colonies adopted that
common-law approach, as did early state legislatures and courts;

Planned Parenthood of Southeastern Pennsylvania v. Casey35 a joint opinion authored by
Justices Sandra Day O’Connor, Anthony Kennedy, and David H. Souter
reaffirmed the central holding of Roe v. Wade.36 The trio observed that it was
tempting . . . to suppose that the Due Process Clause protects only those
practices, defined at the most specific level, that were protected against
governmental interference by other rules of law when the Fourteenth
Amendment was ratified.”37

Now consider the Court’s post-Glucksberg analysis in the historic
Lawrence v. Texas decision.45 There, the Court, by a 5-4 vote, struck down a Texas statute
criminalizing “‘deviate sexual intercourse with another individual of the same
sex.’”46 Justice Kennedy, a member of the Glucksberg majority, authored a
majority opinion that made no reference to Glucksberg.

In repudiating Bowers’ due process traditionalism,
Lawrence did not even cite Glucksberg, an interesting omission given Bowers’ and Glucksberg’s shared
views regarding the interpretation and application of the Due Process Clause.73
Did Glucksberg survive Lawrence?74 The Court’s 2003 decision made no such
proclamation. Was Glucksberg limiting post-Lawrence to the specific issue decided
by the Court’s 1997 ruling, the claimed right to commit suicide with another
person’s assistance? The answer to that question at the time of the Lawrence
decision was by no means clear. What can be said with assurance is that
Lawrence’s due process generationalism, applied in the context of a challenge to a
law discriminating on the basis of sexual orientation, invalidated the traditionbased
and discriminatory status quo.

United States v. Windsor (2013) 75 decision the Court, in yet another 5-4
ruling, held that the federal government violated the Fifth Amendment’s Due
Process Clause76 when it denied an estate tax refund to Edith Windsor, the
surviving spouse of a same-sex marriage sanctioned by the state of New York.77
That marriage was not recognized by the federal Defense of Marriage Act
(DOMA). DOMA defined “marriage” as “a legal union between one man and
one woman as husband and wife” and “spouse” as “a person of the opposite sex
who is a husband or a wife.”78

Obergefell v. HodgesObergefell v. Hodges, 135 S. Ct. 2584 (2015).

the Supreme Court, by a 5-4 vote, held that “the
right to marry is a fundamental right inherent in the liberty of the person, and
under the Due Process and Equal Protection Clauses of the Fourteenth
Amendment same-sex couples may not be deprived of that right and that

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