Civil Rights Case Comment 129 Harv. L. Rev. 147

A New Birth of Freedom?: Obergefell v. Hodges



The decision in Obergefell v. Hodges achieved canonical status even as Justice Kennedy read the result from the bench.  A bare majority held that the Fourteenth Amendment required every state to perform and to recognize marriages between individuals of the same sex.  The majority opinion ended with these ringing words about the plaintiffs: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law.  The Constitution grants them that right.”

While Obergefell’s most immediate effect was to legalize same-sex marriage across the land, its long-term impact could extend far beyond this context.  To see this point, consider how much more narrowly the opinion could have been written.  It could have invoked the equal protection and due process guarantees without specifying a formal level of review, and then observed that none of the state justifications survived even a deferential form of scrutiny.  The Court had adopted this strategy in prior gay rights cases.

Instead, the Court issued a sweeping statement that could be compared to Loving v. Virginia, the 1967 case that invalidated bans on interracial marriage.  Like Loving, Obergefell held that the marriage bans at issue not only violated the Due Process Clause but also violated the Equal Protection Clause.  Yet Obergefell differed from Loving in two important respects.  Where Loving emphasized equality over liberty, Obergefell made liberty the figure and equality the ground.  Obergefell also placed a far stronger emphasis on the intertwined nature of liberty and equality.

In doing so, Obergefell became something even more than a landmark civil rights decision.  It became a game changer for substantive due process jurisprudence.  This Comment will discuss how Obergefell opened new ground in that great debate.

* Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law.  I gratefully acknowledge receiving financial support from the Filomen D’Agostino and Max E. Greenberg Research Fund.  I thank Perri Ravon and Annmarie Zell for their research assistance and Professor Reva Siegel for her comments.