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OBERGEFELL v. HODGES: RIGHT IDEA, WRONG ANALYSIS

Megan M. Walls

TABLE OF CONTENTS

I. INTRODUCTION ...... 133 II. BACKGROUND ...... 136 III. ANALYSIS ...... 138 A. The Set-Up in Loving and Windsor ...... 138 B. The Foundation for as a Suspect Class...... 140 C. Implications of the Obergefell Decision: Missed Opportunity ... 140 D. Depthless Dissent: Bolstering the Majority ...... 142 IV. CONCLUSION ...... 145

I. INTRODUCTION

In Obergefell v. Hodges, the Court, reprising its role as zealous defender of the disenfranchised, declared that bans on same-sex marriages are unconstitutional.1 However, the Court relied on flawed reasoning to do so.2 Rather than apply its traditional and time-tested judicial scrutiny methods to declare sexual orientation a protected class, Justice Kennedy’s analysis featured a generalized Due Process analysis to reaffirm the right to marry.3 Of course, the right to marry has been well established.4 This right was first explicitly identified by the Supreme Court of the in Meyer v. nearly a century ago.5 The Meyer Court took the right to marry as one

1. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015). 2. See, e.g., Peter Nicolas, Obergefell’s Squandered Potential, 6 CALIF. L. REV. CIR. 137, 139–40 (2015) (discussing the indefensibly of the Court’s failure to declare sexual orientation a suspect classification in light of the speed at which other groups have been granted suspect classification). 3. See Obergefell, 135 S. Ct. at 2597–99; see also discussion infra Part III. 4. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see also Loving v. Virginia, 388 U.S. 1, 12 (1967); Zablocki v. Redhail, 434 U.S. 374, 383 (1978). 5. 262 U.S. at 399.

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134 GONZAGA LAW REVIEW Vol. 52:1 of several stemming from the right to liberty under the .6 Despite the decision’s general consistency with Court jurisprudence, Obergefell reflects the failure of the majority to take the opportunity to ensure future protection for gay persons on fronts beyond marriage.7 The evolution of rights for the lesbian, gay, bisexual, and transgender (LGBT) community has been rocky but has also made relatively quick progress.8 In 1986, the Supreme Court held in Bowers v. Hardwick that there is no constitutional right to engage in private homosexual behavior and upheld a Georgia law criminalizing the same.9 However, in 1996, the Court struck down Colorado’s Amendment 2 in the case of Romer v. Evans, which would have actively denied LGBT members constitutional protections.10 Then, in Lawrence v. Texas, the Court overruled Bowers.11 Though the Court declined to recognize a right to engage in homosexual behavior, it held criminalizing the behavior was unconstitutional under the Due Process Clause.12 More recently, as will be discussed later in this comment, the Court held in United States v. Windsor that the federal government cannot interfere with the rights of same-sex couples protected by the Fifth Amendment Due Process and Fourteenth Amendment Equal Protection Clauses.13 This was the first Supreme Court case to set legal precedent regarding same- sex marriage.14

6. Id. 7. Rodney M. Perry, Obergefell v. Hodges: Same-Sex Marriage Legalized, CONG. RES. SERV. 7 (Aug. 7, 2015), https://www.fas.org/sgp/crs/misc/R44143.pdf. 8. See sources cited infra notes 9–12. 9. See Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (upholding a Georgia statute criminalizing private homosexual behavior on the grounds that laws reflecting “moral choices” of the electorate are sufficient to survive under the Due Process Clause). 10. Romer v. Evans, 517 U.S. 620, 635 (1996) (holding Colorado’s Amendment 2 unconstitutional because it “classifies homosexuals not to further a legislative end but to make them unequal to everyone else”). 11. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (adopting Justice Stevens’ reasoning that “individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment . . . [and] this protection extends to intimate choices by unmarried as well as married persons” (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting))). 12. Id. at 578. 13. United States v. Windsor, 133 S. Ct. 2675, 2696 (2013). 14. Tom Watts, From Windsor to Obergefell: The Struggle for Marriage Equality Continued, 9 HARV. L. & POL’Y REV. S52, S56 (2015), harvardlpr.com/online-articles/. WALLS 1/11/2017 10:20 AM

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Despite gains made in Windsor, the law before Obergefell regarding same- sex marriage was still in flux.15 At the time Obergefell was decided, several Circuit Courts were in disagreement about the state of same-sex marriage.16 The Fourth, Seventh, Ninth and Tenth Circuit Courts of Appeals had ruled that States could not ban same-sex marriage,17 but the Sixth Circuit was in direct conflict,18 which launched the Obergefell case.19 The Sixth Circuit ruled the bans were constitutional in part because of Baker v. Nelson, a 1971 case wherein the Minnesota Supreme Court held the state ban on same-sex marriage was not a violation of the Constitution.20 In 1972, the Supreme Court dismissed the appeal because it found Baker lacked a federal question.21 Baker was expressly overruled by Obergefell when the Court’s ruling made same-sex marriage bans sweepingly unconstitutional.22 Obergefell is a consolidation of cases coming from Michigan, Ohio, Tennessee, and Kentucky, states where marriage was defined as a union only between one man and one woman.23 The plaintiffs in Obergefell were fourteen same-sex couples, and two men whose same-sex partners were no longer living when the ruling was made.24 The respondents were the officials responsible for enforcing the state bans on same-sex marriage.25

15. Compare Goodridge v. Dep’t of Pub. Health, 798 N.E. 2d 941, 948 (2003) (declaring bans on same-sex marriage a violation of the Massachusetts state constitution), with ex parte Ala. ex rel. Ala. Policy Inst., No. 1140460,—So. 3d —, 2015 WL 892752, at *23 (Ala., Mar. 3, 2015) (holding that statutes prohibiting the issuance of marriage licenses to same-sex couples did not violate due process or equal protection, and that heightened scrutiny was unnecessary). 16. Compare DeBoer v. Snyder, 772 F.3d 388, 396, 403 (6th Cir. 2014) (holding same- sex marriage bans do not violate the Fourteenth Amendment), with Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir. 2014) (holding same-sex marriage bans cannot be justified because substantive due process includes a fundamental right to marry). 17. See Bostic v. Shaefer, 760 F.3d 352, 367 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456, 464–65 (9th Cir. 2014); Kitchen, 755 F.3d at 1199. 18. DeBoer, 772 F.3d 388, 396, 401, 414. 19. See Obergefell v. Hodges, 135 S. Ct. 2584, 2596–97 (2015). 20. DeBoer, 772 F.3d at 399–400 (stating “[t]he Court has yet to inform us that we” are not bound by its summary decisions, “and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.”). 21. Baker v. Nelson, 409 U.S. 810, 810 (1972). 22. Obergefell, 135 S. Ct. at 2605. 23. Id. at 2593. 24. Id. 25. Id. WALLS 1/11/2017 10:20 AM

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The petitioners challenged the laws on the grounds that the Fourteenth Amendment is violated when the right to marry is denied.26 The district courts in each case found in favor of the plaintiffs, but the Court of Appeals for the Sixth Circuit reversed.27 The United States Supreme Court affirmed the district courts.28 In a slim 5-4 decision, the Court held same-sex couples cannot be denied the fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.29 From that reasoning, the Court also drew the conclusion that States must recognize lawful same-sex marriages performed in other States.30 The Court effectively struck down any remaining state laws banning same-sex marriage,31 and affirmatively legalized same-sex marriage in every State.32 This comment suggests the Obergefell majority correctly concluded that same-sex marriage is a right that cannot be abridged by the States.33 However, the Court erred in failing to identify sexual orientation as a suspect class.34 First, this comment outlines the standards used by the Court in identifying suspect classes and applying to discriminatory laws. It then outlines how the method used in Obergefell provides a weaker jurisprudential foundation compared to the application of judicial scrutiny. Finally, this comment addresses some key arguments from the dissent in order to further demonstrate that the majority reached the correct conclusion despite its errors in analysis.

II. BACKGROUND

Standards for judicial scrutiny in relation to the can be difficult to parse out, especially given that over time there has evolved a three- tiered classification system that is now relied upon by courts when the constitutionality of a law is challenged.35

26. Id. 27. Id. 28. Id. at 2593, 2608. 29. Id. at 2607–08. 30. Id. 31. Id. 32. Id. 33. See discussion infra Part III. 34. See Nicolas, supra note 2, at 143–44 (citing consistency in future gay rights litigation as a reason the Court should have adopted sexual orientation as a suspect class). 35. See generally Richard Fallon, Jr., Strict Judicial Scrutiny, 54 U.C.L.A. L. REV. 1267 (2007) (explaining the development of strict scrutiny and its relationship to rational basis review and ). WALLS 1/11/2017 10:20 AM

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The rational basis test is the lowest level of scrutiny, and is applied when the classification in a discriminatory law does not involve or proceed along suspect lines.36 Under this type of review, the challenger has the burden of proof to show the government’s lack of legitimate interest in the law or that there is no rational link between that interest and the challenged law.37 At the next level, intermediate scrutiny is typically used in cases with quasi- suspect classifications, such as sex or illegitimacy.38 Intermediate scrutiny demands that the challenged law relate to an “important governmental objective” and be “substantially related” to achieving that objective.39 The burden of proof is now placed on the government.40 “Strict scrutiny” is the highest level of scrutiny a court can apply.41 Such scrutiny is applied where government action effectively restricts fundamental rights or places a burden on a suspect class.42 Suspect classes are those which have historically been subjected to intentional discriminatory treatment.43 In dealing with strict scrutiny, the government has the burden of proof to show there is a compelling state interest underpinning the discrimination and that the law is narrowly tailored to support that interest.44 Skinner v. Oklahoma is an example of strict scrutiny analysis.45 In that case, the Court found strict scrutiny of a sterilization law essential to prevent

36. See Armour v. Indianapolis, 132 S. Ct. 2073, 2080 (2012) (quoting Heller v. Doe, 509 U.S. 312, 319–320 (1993)). 37. Id. at 2080–81. 38. See Clark v. Jeter, 486 U.S. 456, 461 (1988). 39. Id. 40. Fallon, supra note 35, at 1273. 41. See Korematsu v. U.S., 323 U.S. 214, 216 (1944) (stating that courts must subject laws “which curtail the civil rights of a single racial group . . . to the most rigid scrutiny”). 42. See, e.g., id.; San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17–18 (1973) (holding that wealth was not a suspect class and therefore strict scrutiny should not be applied to Texas’ reliance on local property taxation in funding its public school system). 43. The traditional suspect classifications were race and alienage, but that is a non- exhaustive list. See Korematsu, 323 U.S. at 216 (stating race is a suspect class); Loving v. Virginia, 388 U.S. 1, 11 (1967); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (suggesting unequal treatment for criminal offenders who have committed essentially similar crimes is suspect); San Antonio Indep. Sch. Dist., 411 U.S. at 17 (holding that wealth was not a suspect class). 44. See San Antonio Indep. Sch. Dist., 411 U.S. at 15–17. 45. 316 U.S. at 541. WALLS 1/11/2017 10:20 AM

138 GONZAGA LAW REVIEW Vol. 52:1 discrimination against certain groups.46 Obergefell cites Skinner to reiterate that, though States are afforded deference, their laws cannot infringe basic rights.47

III. ANALYSIS

In deciding Obergefell, the Court missed a clear opportunity to simplify the law regarding rights of same-sex individuals by failing to identify sexual orientation as a suspect class for the purpose of invoking strict judicial scrutiny.48 The Court had even given itself the perfect set-up, devoid of any procedural obstacles.49

A. The Set-Up in Loving and Windsor

In Loving v. Virginia, the Court dealt with enacted laws that criminalized interracial marriage between white and non-white citizens.50 In its ruling, the Court applied Fourteenth Amendment strict scrutiny analysis to the miscegenation laws and determined that race alone is not enough to deny individuals the right to marry.51 The Court chose to apply strict scrutiny instead of the rational basis test because the case dealt with a suspect class—race—and a fundamental right—the right to marry.52 Nearly fifty years after Loving, the Court decided United States v. Windsor, and struck down an article of the that defined, for federal purposes, marriage as between one man and one woman.53 The Supreme Court held, in a 5-4 decision, that DOMA’s definition of marriage deprived people of the liberty protected by the Fifth Amendment.54 Though Justice Kennedy’s Windsor opinion has been disparaged as having a

46. Id. 47. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015) (citing Skinner, 316 U.S. at 541 (suggesting strict scrutiny aids in protecting groups from “unwitting[]” or “invidious” discrimination)). 48. See Nicolas, supra note 2, at 138. 49. See id. at 139 (noting a lack of procedural hurdles in United States v. Windsor, 133 S. Ct. 2675 (2013), where the Court could have proclaimed sexual orientation a suspect class but neglected to do so). 50. Loving v. Virginia, 388 U.S. 1, 2 (1967). 51. Id. at 11–12. 52. See id. at 8–9. 53. See Windsor, 133 S. Ct. at 2695. 54. Id. at 2695–96. WALLS 1/11/2017 10:20 AM

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“lack of clarity,”55 the Court actually applies a disguised standard of strict judicial scrutiny analogous to that seen in Loving.56 DOMA targeted a specific class of persons, same-sex couples, for disparate treatment in the federal system.57 The Court determined that a desire to “disparage and injure those whom the State . . . sought to protect in personhood and dignity” is not a legitimate interest in applying a discriminatory classification.58 Despite clear parallels, the Court did not outright adopt a strict scrutiny of Windsor though it could—and should—have done so.59 Similarly, the Court in Obergefell concluded that State bans on same-sex marriage violated the Due Process and Equal Protection Clauses.60 Further, the Court held that States must give legal recognition to same-sex marriages performed in other States.61 Because of the Court’s conclusions, same-sex marriage was effectively legalized in every State.62 The Court has a pattern of missed chances.63 As in Loving, the Obergefell Court relied on the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the identification of the right to marry as the foundation of its conclusions.64 The Court did not seek to identify same-sex couples as a suspect class though it clearly had the opportunity and sufficiently parallel facts to do

55. Colin P. Pool, Cracking Windsor’s Code: The Unusual Judicial Review Standard of United States v. Windsor and Its Potential Impact on Future Plaintiffs, UNIV. OF CIN. L. REV. 1 (Jan. 2, 2014), https://uclawreview.org/2014/01/02/cracking-windsors-code-the- unusual-judicial-review-standard-of-united-states-v-windsor-and-its-potential-impact-on- future-plaintiffs/ (discussing generally the “careful consideration” in Windsor and comparing it to “rational basis with bite,” a slightly higher form of scrutiny than rational basis alone). 56. See Windsor, 133 S. Ct. at 2693 (subtly identifying the government interest as “protecting the traditional moral teachings reflected in heterosexual-only marriage laws” and suggesting that the right to marry was being infringed). “[T]hough 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.” Id. at 2695; see Pool, supra note 55, at 3 (referring to the Court’s analysis as “rational basis with bite”). 57. See Windsor, 133 S. Ct. at 2693. 58. See id. at 2696. 59. See Nicolas, supra note 2, at 138–39 (discussing how the Court had the opportunity to apply strict scrutiny in Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges, but neglected to do so). 60. See Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015). 61. Id. at 2608. 62. See id. 63. See Nicolas, supra note 2, at 138. 64. See Obergefell, 135 S. Ct. at 2604; Loving v. Virginia, 388 U.S. 1, 12 (1967). WALLS 1/11/2017 10:20 AM

140 GONZAGA LAW REVIEW Vol. 52:1 so.65 Finally, the Court in Windsor echoed Loving’s equal protection analysis but did not outright state judicial scrutiny was required.66 The majority, the same members of the Court in both Windsor and Obergefell, have twice missed the opportunity to extend lasting protections to the LGBT community based on sexual orientation and participation in same-sex relationships.67 To be sure, the Court could have done so.68

B. The Foundation for Sexual Orientation as a Suspect Class

As noted, judicial scrutiny is typically applied to laws that differentiate between individuals based on a suspect classification.69 These classifications are generally extended to groups that have historically been discriminated against or politically powerless.70 To pass scrutiny, the government must show the classification is related to a government interest.71 The Court has also noted that simple “desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”72 Obergefell provides a brief overview of gay rights and a discussion of how legislatures and courts have discriminated against the LGBT community in the past.73 That marriage is a fundamental right was never in question.74 The conclusion that sexual orientation is a suspect class should have been obvious.75

C. Implications of the Obergefell Decision: Missed Opportunity

Instead of applying strict scrutiny, the Court reasoned, not incorrectly, that there is a protected right to marry under the Fourteenth Amendment’s Due

65. See Loving, 388 U.S. at 2, 9; see Nicolas, supra note 2, at 139. 66. See U.S. v. Windsor, 133 S. Ct. 2675 (2013); Loving, 388 U.S. at 12. 67. See Nicolas, supra note 2, at 138. 68. Id. 69. See Perry, supra note 7, at 1. 70. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (describing suspect classes and the historically oppressed). 71. See Obergefell v. Hodges, 135 S. Ct. 2584, 2623 (2015). 72. Romer, 517 U.S. at 634–35 (citing Dep’t. of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). 73. See 135 S. Ct. at 2596–98. 74. See id. at 2589. 75. See Nicolas, supra note 2, at 138 (stating that the Court had the opportunity in four gay rights cases before Obergefell to make sexual orientation a suspect class and suggesting the chance to provide lasting protection for gay rights was missed). WALLS 1/11/2017 10:20 AM

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Process Clause.76 As previously discussed, the right to marry is well-established and not really in question.77 The Court merely concluded that Due Process and Equal Protection gives same-sex couple the same rights to enjoy marriage as opposite-sex couples.78 By failing to apply, or even discuss, sexual orientation as a suspect class, the Court has left open other questions involving LGBT rights.79 The Court neglected to bind future courts in stare decisis to the protection of same-sex couples and LGBT minorities, and bypassed the opportunity to deter future attempts to deprive the community of fundamental rights.80 The Circuit Court split on whether sexual orientation is a suspect class, and what level of judicial scrutiny the issue requires, remain unresolved.81 It is quite possible that in the future the Circuit Courts will apply differing standards of scrutiny, thus resulting in legislation that is far from uniform with regard to classification of individuals by sexual orientation.82 Furthermore, Obergefell has raised questions about how potential future marriage cases will be decided, particularly with regard to polygamy.83 The future debate will probably revolve around whether, in the States’ continued capacity to regulate marriage, they can differentiate between denying marriage to individuals of the same-sex and denying marriage to multiple individuals – some of whom may already be married.84 This comment is disinclined to make any predictions as to an outcome, though Chief Justice Roberts expressed concern that Obergefell’s holding will be construed too broadly to further deny

76. See Obergefell, 135 S. Ct. at 2604–06; see also Loving v. Virginia, 388 U.S. 1, 12 (1967). 77. See Obergefell, 135 S. Ct. at 2589. But see Obergefell, 135 S. Ct. at 2631, 2636 (Thomas J., dissenting). 78. See Obergefell, 135 S. Ct. at 2602. 79. See Nicolas, supra note 2, at 142 (stating the failure to declare sexual orientation a suspect classification “has resulted in concrete harm to gays and lesbians . . . [and noting that d]espite precedents like Romer and Lawrence, lower courts have repeatedly upheld laws discriminating on the basis of sexual orientation”). 80. See id. at 137–38. 81. See Perry, supra note 7, at 6. 82. See id. at 6–7. 83. See 135 S. Ct. at 2621 (Roberts, C.J., dissenting). 84. Read together, Windsor and Obergefell create an interesting outline on the role of States’ rights in defining marriage in light of constitutional guarantees. It remains to be seen whether the holding in Obergefell can be extended to include polyamorous individuals. See Obergefell, 135 S. Ct. at 2621–22 (Roberts, C.J., dissenting); see generally Windsor, 133 S. Ct. 2675 (denying the federal government the authority to define marriage as between a man and a woman by invalidating DOMA). WALLS 1/11/2017 10:20 AM

142 GONZAGA LAW REVIEW Vol. 52:1 polygamists the recognition.85 Fortunately, other dissenting opinions are more easily dealt with.86

D. Depthless Dissent: Bolstering the Majority

Though Obergefell’s dissenting justices had a few scathing things to say about the majority opinion, their arguments’ lack of a unified voice of opposition served only to bolster the majority. Chief Justice Roberts even described the policy arguments for legalizing same-sex marriage as “compelling.”87 Now that’s a tongue lashing. However, it was heavily suggested that Justice Kennedy’s analysis had stepped outside the purview of the Court in denying the States the power to determine the definition of marriage and the question of whether same-sex couples have the right to marry.88 It was also claimed that the majority was overlooking the tradition of leaving the regulation of marriage to the States.89 These assertions have no bite.90 What this view fails to fully consider is that the majority did not unduly deny the democratic process.91 In fact, the majority explicitly states that usually the democratic process would be the most appropriate forum for enacting change.92 The majority also pointed out that States must exercise their powers in relation to the Constitution.93 That the Constitution, including the Due Process and Equal Protection Clauses, is superior to state law should be shocking to no one.94 When the States adopted definitions of marriage that infringed upon the fundamental rights of a group of people, the States acted in a manner contrary to

85. 135 S. Ct. at 2621–22 (Roberts, C.J., dissenting) (suggesting and expressing concern that plural marriage will be the next marriage debate). 86. See discussion infra Part III(D). 87. Obergefell, 135 S. Ct. at 2611 (Roberts, C.J., dissenting). 88. See id. at 2612 (stating “[the majority] seizes for itself a question the Constitution leaves to the people”); id. at 2629 (Scalia, J., dissenting) (“Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”). 89. See id. at 2612–13 (Roberts, C.J., dissenting) (stating the case has not been made for removing the issue from the democratic process). 90. See discussion infra Part III(D). 91. See infra notes 94–99 and accompanying text. 92. Obergefell, 135 S. Ct. at 2605 (Roberts, Scalia, & Alito, JJ., dissenting). 93. See generally Loving, 388 U.S. 1 (stating that though “marriage is a social relation subject to the State’s police power,” laws must still adhere to the Fourteenth Amendment of the Constitution). 94. See U.S. CONST. art. VI, cl. 2. WALLS 1/11/2017 10:20 AM

2016/17 OBERGEFELL v. HODGES 143 the Constitution.95 The Court tackled this same problem in Loving v. Virginia,96 and the dissenters should recognize the parallels between the two cases. Surely they would not suggest it is appropriate to allow the States to declare interracial marriages illegal.97 A more comprehensive argument comes from Justice Thomas, who essentially argues that there can be no right to marry because “liberty” is freedom from government, not the entitlement to government benefits.98 He asserts that Due Process is an inappropriate analysis in this case; liberty means freedom of movement and freedom from government intrusion.99 He claims the petitioners have no Due Process liberty claim because they can cohabitate, raise children, move freely about the country, and their ability to engage in same-sex relationships and intimate behavior is not infringed.100 However, Justice Thomas’s view swims against a strong tide of Supreme Court precedent.101 It has long been established that the liberty aspect of Due Process encompasses implied rights, including the right to privacy and the right to marry.102 This concept is also found in the Ninth Amendment, which states that the list of rights enumerated in the Constitution is not exhaustive.103 Over the years, the Court has done a fair amount of “reading between the lines.”104 If the Supreme Court wants to identify an implied right, it certainly has the power to do so,105 but to suggest there is not a right to marry is baseless and bordering on irrational. If there is no right to marry, then supposedly there would be a privilege. It is doubtful that suddenly a heterosexual mono-racial couple would be denied the privilege of marriage, but others could be left out in the cold.106

95. See Obergefell, 135 S. Ct. at 2597–607. 96. See 388 U.S. at 12. 97. See generally id. (showing that certain discriminatory definitions of marriage violate the Constitution). 98. See Obergefell, 135 S. Ct. at 2631 (Scalia & Thomas, JJ., dissenting). 99. See id. at 2631–32. 100. Id. at 2635. 101. See Obergefell,135 S. Ct. 2598–99, 2604; see discussion infra Part III (discussing an implied right to marry). 102. William R. Musgrove, Substantive Due Process: A History of Liberty in the Due Process Clause, 2 U. OF ST. THOMAS J. OF L. & PUB. POL’Y 125, 130–31, 136 (2008). 103. U.S. CONST. amend. IX. 104. Musgrove, supra note 103, at 130–131. 105. See, e.g., Obergefell, 135 S. Ct. at 2598 (“The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”). 106. See, e.g., Loving, 388 U.S. at 2 (invalidating miscegenation laws); see also, KY. CONST. § 233A (preventing same-sex couples from legally marrying) (held unconstitutional WALLS 1/11/2017 10:20 AM

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To make marriage a privilege and not a right could potentially conflict with Loving v. Virginia and modern notions of an equal society.107 And if the Court concluded marriage is no longer protected by the Due Process Clause, would our other implied rights have to go as well? The right to procreate? The right to have custody of our own children and to educate them as we see fit? What about our right to refuse medical treatment, or even the often controversial right to privacy? Even though Justice Thomas makes an interesting point in his dissent, the practical application of his ideas is simply unfeasible and undesirable. A third concern, found in Chief Justice Roberts’ dissent, is how Obergefell will coincide with the First Amendment.108 It has been asserted that the majority values an implied right over the enumerated freedom to exercise religion.109 However, the First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”110 First, Congress played no role in Obergefell.111 Second, the Obergefell decision does not prohibit the free exercise of religion, and even handles the subject delicately.112 At one point the majority opinion states the following:

“[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”113

It is important to recognize that not every religion or religious person is opposed to same-sex marriage. To assume the decision violates the religious rights of some but not others is also to say the opposite conclusion would have done the same. In addition, the Court’s decision does not prevent religious

by Obergefell, 135 S. Ct. 2584); OHIO CONST. art. XV, § 11 (preventing valid marriages from existing for same-sex couples) (held unconstitutional by Obergefell, 135 S. Ct. 2584). 107. See Loving, 388 U.S. at 12. 108. See 135 S. Ct. 2584, 2625 (2015) (Roberts, C.J., dissenting) (noting that the majority’s reassurance that citizens will still have the right to “advocate” and “teach” their views of marriage are not the same as the constitutionally protected right to “exercise” religion). 109. See id. 110. U.S. CONST. amend. I. 111. See generally 135 S. Ct. 2584, in which the word “Congress” is mentioned only twice, and never in relation to the Court’s decision. 112. See id. at 2607. 113. Id. WALLS 1/11/2017 10:20 AM

2016/17 OBERGEFELL v. HODGES 145 opponents from being religious or from remaining opponents of same-sex marriage.114 So, while concerns about the First Amendment are undoubtedly relevant in certain ways to Obergefell, they cannot be a significant deciding factor.

IV. CONCLUSION

Obergefell v. Hodges represents missed opportunity.115 Though the Court reaches the correct conclusion that the Fourteenth Amendment prohibits bans on same-sex marriage and requires States to recognize same-sex marriages licensed in other States,116 the Court does not go far enough. Instead, the repeated failure to recognize the potential in adopting sexual orientation as a suspect class suggests the Court is not giving these controversial issues its full attention.117 Though Obergefell resolved the same-sex marriage debate, it left open many questions pertaining to LGBT rights that will likely be seen in the near future.118

114. Id. But see Stephen M. Feldman, (Same) Sex, Lies, and Democracy: Tradition, Religion, and Substantive Due Process (with an Emphasis on Obergefell v. Hodges), 24 WM. & MARY BILL OF RTS. J. 341, 345, 356, 358 (2015) (explaining that although the First Amendment protects religious freedom, all people must have “diminished democratic power if and when they advocate for the discriminatory or unequal treatment of a societal group, such as gays and lesbians”). 115. See supra Part III(C); see also Nicolas, supra note 2, at 140 (discussing the indefensibility of the Court’s failure to declare sexual orientation a suspect classification in light of the speed at which other groups have been granted suspect classification). 116. See supra Part III. 117. See Nicolas, supra note 2, at 141. 118. See Nicolas, supra note 2, at 142; see also Perry, supra note 7, at 6.