As have past decisions on lesbian, gay, bisexual, and transgender (LGBT) rights written by Justice Kennedy, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), has received criticism from some quarters for its liberty analysis, which some critics attack as an undemocratic usurpation of power by the judiciary and others condemn as too obscure. See, e.g., David Upham, “Symposium: A Tremendous Defeat for ‘We the People’ and Our Posterity,” Scotusblog, June 26, 2015; Paul Horwitz, “The Same-Sex Marriage Decision,” Commonweal Mag., July 10, 2015.
As an initial matter, when decisions affirming the rights of traditionally oppressed minorities are decried as “undemocratic,” such criticisms are deeply flawed. The weakness of such critiques is that they are based on a narrow understanding of democracy that equates it with majoritarianism, while failing to honor the necessity of judicial review as a critical safeguard against majority tyranny’s legislative usurpation of constitutional rights. See Nancy C. Marcus, “When Quacking Like a Duck Is Really a Swan Song in Disguise: How Windsor’s State Powers Analysis Sets the Stage for the Demise of Federalism-Based Marriage Discrimination,” 64 Case W. Res. L. Rev. 1073, 1095 (2014) (“Leaving fundamental rights to the vote of a simple democratic majority can too easily result in the type of majority tyranny our Constitution was written to prevent. . . .”) (citing Barbara J. Cox, “‘The Tyranny of the Majority Is No Myth’: Its Dangers for Same-Sex Couples,” 34 Hamline J. Pub. L. & Pol’y 235, 244–50 (2013); Alexis de Tocqueville, Democracy in America (1835); The Federalist No. 10 (James Madison); Windsor v. United States, 699 F.3d 169 (2d Cir. 2012); United States v. Carolene Prods., 304 U.S. 144, 153 n.4 (1938)).
Democracy, in short, should not be equated with majoritarianism. See Jane S. Schacter, “Ely and the Idea of Democracy,” 57 Stan. L. Rev. 737, 754 (2004); Stephen Breyer, Active Liberty 7, 15–16, 21–32 (2005) (explaining that because the original Constitution did not accord full democratic protections to all, judicial intervention on behalf of traditionally oppressed groups is necessary to ensure democratic access). Rather, constitutional democracy must at its core be rooted in principles of “equality, liberty, and citizenship—core democratic concepts that are enshrined in the Fourteenth Amendment.” Schacter, supra, at 754. Therefore, “courts, through constitutional interpretation, will have a role in defining our democracy, whether we want to say that’s what they are doing or not” and whether a particular ruling is supported by the preferences and prejudices of the majority of citizens or not. Id.
With the flaws of such attacks on Obergefell as “undemocratic” thus exposed, the more (interesting) substantive, doctrinal-based criticism of Obergefell worth addressing is the criticism of it as based on a precarious constitutional foundation, due to its “liberty” emphasis. This doctrinal criticism mirrors a longer tradition of theoretical critiques of substantive due process as a whole. See, e.g., Charles L. Black, Jr., A New Birth of Freedom: Human Rights, Named and Unnamed 3 (1997) (“This paradoxical, even oxymoronic phrase—‘substantive due process’—has been inflated into a patched and leaky tire on which precariously rides the load of some substantive human rights not named in the Constitution.”); Ruth Colker, “An Equal Protection Analysis of United States Reproductive Health Policy: Gender, Race, Age and Class,” 41 Duke L.J. 324, 356–57 (1991) (criticizing substantive due process as basis for reproductive rights); Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” 63 N.C. L. Rev. 375, 386 (1985) (same).
What such critics miss about Kennedy’s Obergefell opinion, however, is that the opinion is not doctrinally grounded in a substantive due process-based “liberty” analysis alone; rather, the opinion applies two related hybrid doctrines with well-established roots in constitutional precedent and principles: (1) equal liberty and (2) intimate association. The remainder of this article explains the meaning and evolution of both doctrines and how the doctrines were applied in Obergefell.
Equal liberty, as a doctrine, reflects the Court’s recognition that equal protection and substantive due process (through which fundamental liberty interests are protected) are intertwined, being fundamentally interrelated sources of constitutional protections. This intertwined nature of equal protection and due process is particularly manifest in LGBT-rights cases brought under the Fifth and Fourteenth Amendments. See, e.g., Nancy C. Marcus, “Deeply Rooted Principles of Equal Liberty, Not ‘Argle Bargle’: The Inevitability of Marriage Equality After Windsor,” 23 Tul. J.L. & Sexuality 17, 25–28, 46–52 (2014) (describing Windsor’s unification of equal protection and liberty principles). As a matter of doctrinal coherence, this is the case because, in order for fundamental rights to be meaningfully protected, they must be extended, as the text of the Fourteenth Amendment guarantees, on an equal basis to all citizens.
Equal liberty has long been recognized by legal scholars as a part of individual rights constitutional jurisprudence; as Laurence Tribe famously observed, “due process and equal protection, far from having separate missions and entailing different inquiries, are profoundly interlocked in a legal double helix.” Laurence H. Tribe, “Lawrence v. Texas: The ‘Fundamental Right’ That Dare Not Speak Its Name,” 117 Harv. L. Rev. 1893, 1898 (2004). Indeed, since our constitutional democracy’s founding, the Supreme Court has applied a combination of equal protection and liberty analyses and cited “equal liberty” on a number of occasions. See Marcus, “Deeply Rooted Principles of Equal Liberty,” supra, at 46–47 & n.13 (citing City of Boerne v. Flores, 521 U.S. 507, 552–56 (1997); Gaillard Hunt, “James Madison and Religious Liberty,” in 1 Annual Report of the American Historical Association, H.R. Doc. No. 702, at 163, 166–67 (1901); Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518, 533 (1819); Chisholm v. Georgia, 2 U.S. 419, 472–73 (1793)).
As Kenneth Karst has documented, the roots of equal liberty are ancient:
[T]he various opinions in the tragic cases of Hirabayashi v. United States and Korematsu v. United States . . . reflected a tradition of equal liberty dating to ancient days.
And I do mean ancient. Aristotle not only specified both liberty and equality as necessary components of a democracy; he also referred to equality as “one note of liberty which all democrats affirm to be the principle of their state.” This linkage has had strong staying power. Fast forward to 1215 and Magna Carta, which is widely seen as the source of the idea of due process of law as “the law of the land,” and also seen as contributing to the egalitarian strain in the American legal tradition. Then, consider the American colonial era: The Mayflower Compact promised “just and equall lawes . . . for the general good of the Colonie.” Jean Jacques Rousseau, in The Social Contract, echoed Aristotle’s dictum about equal enjoyment of the same rights. In the era of Rousseau, just before the American Revolution, one common complaint of the colonists was the refusal of the Crown and Parliament to afford Americans equal liberties—that is, “the rights of Englishmen.” Next, consider the founding of the Nation: When the Declaration of Independence celebrated equality, it was referring to equality of right. As George Fletcher puts it, the Declaration meant that all people “are equal among themselves precisely in that they possess inalienable rights—the same inalienable rights to ‘life, liberty, and the pursuit of happiness’ possessed by everyone else.”
Kenneth L. Karst, “The Liberties of Equal Citizens: Groups and the Due Process Clause,” 55 UCLA L. Rev. 99, 103–4 (2007) (citations omitted).
Considering the long history of this complementary relationship between equality and liberty, it is apt that equal protection and substantive due process have often graduated from mere coexistence to providing a unified front of constitutional protections in Fourteenth Amendment cases.
Jane Schacter, who has also written of the Court’s equal liberty Fourteenth Amendment jurisprudence, traces equal liberty’s roots as well to the political theory of John Rawls, who described equal liberty as a primary principle of justice and “stressed the centrality of ‘equal liberty’ as a critical structuring principle for the polity. In Theory of Justice, Rawls made equal liberty his first principle of justice, saying that ‘[e]ach person is to have an equal right to the most extensive basic liberty compatible with similar liberty for others.’” Jane S. Schacter, “Lawrence v. Texas and the Fourteenth Amendment’s Democratic Aspirations,” 13 Temp. Pol. & Civ. Rts. L. Rev. 733, 749 (2004).
Equal liberty has become a central theme in the Court’s LGBT-rights decisions, which reflect the hybrid nature of the equal liberty protections emphasized therein. Although the first significant affirmation by the Court of constitutional rights of LGBT individuals, Romer v. Evans, 517 U.S. 620 (1996), was solely an equal protection decision, the Court’s subsequent decisions in Lawrence v. Texas, 539 U.S. 558 (2003), United States v. Windsor, 133 S. Ct. 2675 (2013), and Obergefell have all rested on doctrinal bases with both equal protection and substantive due process components.
In Lawrence, for example, the Court based its decision on both equality and liberty grounds and emphasized the hybrid nature of its analysis, explaining, “[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.” Lawrence, 539 U.S. at 575. In Windsor, the Court’s conclusion affirming same-sex marriage recognition rights for the first time was written even more elaborately in terms of the symbiotic relationship between equal protection and due process, with Justice Kennedy explaining that “[t]he 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.” Windsor, 133 S. Ct. at 2695.
Finally, through Obergefell, Kennedy’s continued development of an “equal liberty” body of jurisprudence, particularly in LGBT-rights contexts, culminated in a conclusion that powerfully affirms same-sex marriage rights in both due process and equal protection terms:
These considerations lead to the conclusion 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 couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
Obergefell, 135 S. Ct. at 2604–5.
When this concluding passage of Obergefell is viewed in the context of the cases leading up to the decision, the “equal liberty” dimensions of the case are clear. After Obergefell, it should also be clear to future litigants that they need not necessarily choose between arguing a case as a due process case and arguing a case as an equal protection case: In the era of “equal liberty” jurisprudence, civil rights lawyers can avail themselves of the best of both worlds of doctrines, which, when united into a cohesive and powerful equal liberty claim, elevate constitutional protections to a potent new level.
Freedom of Intimate Association
While some critics of Obergefell decry it as a “liberty” decision, largely ignoring the case’s strong equality component, other critics of Obergefell unfairly describe Kennedy’s majority opinion as creating new unenumerated fundamental rights out of thin air. See, e.g., Howard Slugh, “Justice Kennedy Has Opened the Floodgates to a Plethora of New ‘Rights,’” Nat’l Rev., July 1, 2015; Timothy Sandefur, “Gay Marriage Decision: Right for the Wrong Reasons,” Foundation for Economic Education, June 26, 2015. Such accusations overlook the explicit protections for liberty enumerated in the text of the Constitution’s Fourteenth and Fifth Amendments. They also fail to grasp a critical aspect of Obergefell: Kennedy’s opinion describes the specific liberty interest at issue in that case as an “intimate association” right. Obergefell, 135 S. Ct. at 2589. Specifically, Kennedy explains that the Court’s past cases, including Griswold v. Connecticut and Turner v. Safley, have affirmed that marriage, as a form of an “intimate association” right, is a right that LGBT individuals are equally entitled to:
As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.
Id. at 2599–2600 (citing Lawrence, 539 U.S. at 567; Turner v. Safley, 482 U.S. 78, 94 (1987); Griswold v. Connecticut, 381 U.S. 479, 485 (1965)) (emphasis added).
Indeed, the intimate associational right affirmed in Obergefell has roots that can be traced back well beyond Griswold and Lawrence, freedom of intimate association being a doctrine well established though a longer line of cases, including the seminal case of Roberts v. United States Jaycees, 468 U.S. 609 (1984).
In Roberts, the Court described freedom of intimate association as a type of First Amendment associational right and liberty interest long protected by the Constitution, with roots grounded in the text of both the First and Fourteenth Amendments. Id. at 617–18. The Court explained that the Bill of Rights affords “certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State” and that such protections are “central to any concept of liberty.” Id. at 618.
In Roberts and its progeny, the Court elaborated that intimate associations are accorded strong liberty protections under the First and Fourteenth Amendments dependent on the “size, purpose, policies, selectivity, congeniality,” and other pertinent relationship characteristics. Id. at 620. See also Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 546 (1987). Through these cases, the freedom of intimate association doctrine was solidly established by the Court as a constitutional-text-based source of liberty protections, as a number of federal courts have noted over the years. See, e.g., Cordero v. Warren, No. 14-28602015, WL 2408133, at *2 (3d Cir. May 21, 2015); Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 57–59 (2d Cir. 2014); Fair Hous. Council v. Roommate.com, 666 F.3d 1216, 1220–21 (9th Cir. 2012); Christensen v. Boone Cty., 483 F.3d 454, 461–63 (7th Cir. 2005); Patel v. Searles, 305 F.3d 130, 135–36 (2d Cir. 2002); Johnson v. Cincinnati, 310 F.3d 484, 498–500 (6th Cir. 2002)
Although the freedom of intimate association is a well-established doctrine, LGBT-rights litigants did not invoke it in Obergefell, and Kennedy’s opinion subsequently mentioned intimate association in only a cursory manner. The resulting failure of the opinion to more explicitly connect its analysis to the longer line of intimate association precedents leading up to Obergefell is unfortunate and adds to the perception of Kennedy’s opinion as ungrounded or opaque.
While Kennedy could have more explicitly connected Obergefell’s intimate association–based holding to the Roberts line of intimate association cases, however, savvy attorneys should be able to connect the dots and invoke Obergefell alongside other intimate association cases in future litigation to protect intimate relationships. Intimate associational rights may be but one type of liberty interest protected under the Fifth and Fourteenth Amendments, but they are among the most precious and fundamental. Consequently, as an intimate association case, Obergefell opens the door to greater protections for personal liberties in the future.
Between Obergefell’s equal liberty and intimate association doctrinal underpinnings, the case is powerful in its potential precedential force, unlocking future avenues of constitutional argument beyond previously rigid and confined falsely dichotomous choices between liberty and equality. After Obergefell, more than ever, it is a both/and, “equal liberty,” world, one that encompasses liberty protections for our most intimate associations, preserving their sanctity from unconstitutional intrusion.
Keywords: litigation, civil rights, Obergefell, equal liberty, intimate association
Nancy C. Marcus, LLM, SJD, is an assistant professor of law and founding constitutional law professor at Indiana Tech Law School. She is the chair of the LGBT Rights Subcommittee of the Section of Litigation Civil Rights Committee.
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