In recognizing a substantive due process liberty interest in same-sex marriage, Justice Kennedy’s opinion in Obergefell v. Hodges eschewed any need to rely on a “careful description” of the right, or the recognition that the right is “deeply rooted in this Nation’s history and tradition.” The majority explains that Washington v. Glucksberg is simply inapplicable:
Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), which called for a “ ‘careful description’ ” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. 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.
But this isn’t quite right. The Court’s leading substantive due process opinions in fact attempted to connect the liberty interest at issue with “reference to specific historical practices.” This history may be contrived, but the Justice still felt the need to place their ruling within some bounds.
In Griswold v. Connecticut, Justice Douglas casts the privacy rights of married couples as right older than our Constitution:
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
In Roe v. Wade, Justice Blackmun spent page after page talking about quickening, to support the conclusion that at the time of the ratification of the 14th Amendment, states did not prohibit abortions during the first trimester.
It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
Even in Lawrence v. Texas, Justice Kennedy cited briefs by the Cato Institute and the ACLU to support the notion that at the time of the framing of the 14th Amendment, the state did not criminalize consensual homosexual sodomy. This discussion was aimed at rebutting Justice White’s conclusion in Bowers v. Hardwick, that “Proscriptions against that conduct have ancient roots.” Rather, Justice Kennedy wrote:
In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16—17; Brief for American Civil Liberties Union et al. as Amici Curiae 15—21; Brief for Professors of History et al. as Amici Curiae 3—10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.
At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. . . . Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.
Why did these Justices–who were by no means originalists–feel compelled to turn to history? The answer can be found in Justice Harlan’s influential dissenting opinion in Poe v. Ullman. Chief Justice Roberts’s dissent ably summarizes the historical thrust of Harlan’s opinion.
The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” Id., at 542, 81 S.Ct. 1752. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up … form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id., at 546, 81 S.Ct. 1752.
Yet, with Obergefell, the need to rely on tradition was firmly rejected. Indeed, no nation on earth legalized same-sex marriage before 2001.
If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.
This sub silentio overruling of Washington v. Glucksberg was not lost on the Chief Justice:
Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights *2621 taken by this Court in Glucksberg. Ante, at 2602 (quoting 521 U.S., at 721, 117 S.Ct. 2258). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.
Or on Justice Alito:
For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long- established tradition.The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.
This utter rejection of tradition, without even the need to feign one, effects a massive shift in the Court’s already unbounded substantive due process jurisprudence.