Substantive Due Process: How the upcoming challenge to Obergefell could upend decades of legal progress.

Credit: Stock Images

Decided in 2015, Obergefell v. Hodges stands as one of the Supreme Court’s most progressive decisions in recent memory. Yet, Obergefell’s outcome was the result not only of the Roberts Court of 2015 but years upon years of tirelessly achieved judicial precedence. Specifically, Obergefell is a recent example of substantive due process, which was utilized in deciding the cases of Griswold v. Connecticut, Loving v. Virginia, and Lawrence v. Texas. Today, the Supreme Court (SCOTUS) stands on the precipice of tearing down this precedent, at risk of taking the rest of the substantive due process cases down with it. After Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas wrote in his concurring opinion that “[the court] should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Thus, with conservative legal activists poised to try cases under Justice Thomas’ directive, the United States currently remains in a legal limbo as decades of substantive due process precedent are at risk of being challenged, ready to be thrown into the wind. It is imperative with this position to understand the building blocks that got SCOTUS to this point and what substantive due process truly is and does.

The foundation for Obergefell and its preceding cases lies in the 14th Amendment’s Due Process Clause, which prohibits states from depriving “any person of life, liberty, or property, without due process of law.” While the amendment doesn’t specifically mention issues such as same-sex marriage, the right to contraceptives, or interracial marriage, substantive due process encompasses SCOTUS’s long-held interpretation of the Due Process Clause to protect certain individual liberties. As far back as Griswold v. Connecticut in 1965, the court recognized a right to privacy not mentioned in the Constitution, striking down a statute that criminalized the use of contraceptives by married couples. In Griswold, Justice William O. Douglas argued that specific guarantees in the Bill of Rights cast “emanations” (rays of influence) that create “penumbras” (areas of implied protection). This idea has proven critical to decisions made since, allowing justices to protect certain rights not directly guaranteed in the Constitution, a concept known as substantive due process.

The link between Griswold and Obergefell is real, specific, and linear. Since the Griswold decision, each subsequent case expanded upon its predecessors, both reinforcing and building upon the scope of protected liberty. In the case of Loving v. Virginia, SCOTUS ruled that statewide bans on interracial marriage were unconstitutional, maintaining the idea that the freedom to marry is, as Chief Justice Warren wrote, “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Although the Loving decision relied upon both the  Equal Protection and Due Process Clauses, its recognition of marriage as a fundamental right would come back into play decades later in Obergefell. Similarly, in Lawrence v. Texas, the court struck down a Texas state statute criminalizing consensual same-sex intimacy. Writing for the majority, Justice Kennedy emphasized that the state “cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Lawrence’s landmark decision relied on the interests of liberty articulated through both Griswold and Loving. 

Obergefell was decided as a culmination of these prior rulings. Justice Kennedy’s majority opinion specifically cited Griswold, Loving, and Lawrence in recognizing marriage as a liberty interest that same-sex couples would not be denied. Moreover, the Court emphasized that “the fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy.” The ruling in Obergefell did not create a novel right; rather, it applied established precedent to a contemporary issue.

SCOTUS’s decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade marked a significant shift in substantive due process jurisprudence. While the majority argued that its holding in the case applied narrowly to abortion, Justice Thomas’s aforementioned call for reconsideration of Griswold, Lawrence, and Obergefell raises doubts. The reasoning used in the Dobbs case that only rights deeply rooted in the nation’s history and tradition merit protection by the Constitution directly contradicts the logic of Obergefell, its predecessors, and the entire doctrine of substantive due process. If the new precedent is applied unilaterally, the historical analysis employed could render any single right not explicitly enumerated in the Constitution or clearly recognized in 19th-century legal doctrine invalid.

This pivot risks not only the rights of Americans but also transforms substantive due process into an empty vessel. Because the court in Obergefell explicitly built its decision upon Griswold, Loving, and Lawrence, re-evaluating one calls the legitimacy of the entire chain into question. A decision to take an upcoming challenge to Obergefell would likely result in the overturning of the case, thereby fueling renewed challenges against the rights provided through substantive due process.

It’s important to note that legal precedent operates not in isolation from one another but as a cumulative process. Courts justify their decisions through citing prior rulings, which establishes a complicated network of interdependent legal principles. Obergefell is not an outlier; it’s a point in a doctrinal trajectory of privacy. Removing it from constitutional canon threatens the framework from which it emerged. Moreover, SCOTUS has repeatedly affirmed that this process, called stare decisis, promotes legal stability and institutional legitimacy. To discard Obergefell while leaving the cases upon which it sits untouched would represent ideological inconsistencies. Alternatively, a logical dismantling of Obergefell would require revisiting and most likely overturning Griswold, Loving, and Lawrence with widespread consequences for privacy, marriage, and bodily autonomy.

The campaign to overturn Obergefell v. Hodges threatens far more than just marriage equality. Because Obergefell is a part of a spider web of landmark cases defining substantive liberties under the 14th Amendment, reversing it would catalyze a broader unraveling of privacy and autonomy rights. The court must acknowledge that it cannot dismantle Obergefell without destabilizing the very structure of constitutional liberty built over the past six decades. To do so would not only retreat from the progress of the United States, but it would also endanger the very legitimacy of the Court itself, harming millions of citizens across all 50 states.

Hayden Hradek is a freshman from the Ozarks of southwest Missouri studying Philosophy and Data Science. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at hayden_hradek@brown.edu.

Danny Moylan is a sophomore from Massachusetts studying Political Science and International/Public Affairs. He is a staff editor for the Brown Undergraduate Law Review and can be contacted at daniel_moylan@brown.edu.

Luca Feng is a sophomore at Brown University studying Chemical Engineering and Political Science. He is a staff editor for the Brown Undergraduate Law Review and can be contacted at trevor_feng@brown.edu.