Obergefell: Synergy of Due Process and Equal Protection

Not expanding a right but rather the ability to exercise an existing one

The Court’s majority decision in Obergefell v. Hodges, No. 14-556 (U.S. Jun 26, 2015) is grounded in the synergy between the protections of due process and equal protection. The Court reiterated that the right to marry is a long-held right protected by the Constitution and held that "[i]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society." Obergefell, at *22.

In doing so, the Court answered head-on the argument raised by opponents of marriage equality that the petitioners did not seek to exercise the right to marry, "but rather a new and nonexistent 'right to same-sex marriage.'" Obergefell, at *23 (quotingBrief for Respondent, p. 8). As the Court explained, it is inconsistent with the approach the Court has used in discussing other fundamental rights, including marriage and intimacy, to describe a right in such a circumscribed manner.

Loving did not ask about a "right to interracial marriage"; Turner did not ask about a "right of inmates to marry"; and Zablocki did not ask about a "right of fathers with unpaid child support duties to marry." Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.


Indeed, if fundamental rights were limited to those who had successfully exercised them in the past, they would not have been extended on the basis of equal protection. The Court’s decision thus focuses on the relationship between liberty and equality and concludes 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." Obergefell, at *4-5. Accordingly, state laws are invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.