The Right to Same-Sex Marriage: Formalism, Realism, and Social Change in Lawrence (2003), Windsor (2013), & Obergefell (2015)

Ronald Kahn

My work to date has centered on the process through which individual rights have developed under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Thus far, I have explored the question of why a “conservative-moderate” Supreme Court in a conservative political age (since the 1990s) has expanded implied fundamental rights to sexual intimacy for homosexuals and sustained the fundamental right of women to choose whether to have an abortion. Since 1969, when President Nixon named Warren Burger as Chief Justice, through 2005, when President George W. Bush appointed Chief Justice John Roberts and nominated Justice Samuel Alito for the Supreme Court, Republican presidents have made twelve of fourteen appointments to the Supreme Court, thus constituting a clear majority of appointees in any given year.

Yet during the Rehnquist Court, the Supreme Court reaffirmed the right to abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey and, in Lawrence v. Texas, overturned Bowers v. Hardwick, extending the implied fundamental rights of privacy and personhood to homosexuals regarding the right of sexual intimacy. Additionally, in Romer v. Evans, a 6-3 decision, the Rehnquist Court invalidated a Colorado constitutional amendment that required all laws relating to homosexuals to be valid only through the process of amending Colorado’s constitution. The Court said this initiative was invalid because it was based on pure animus against homosexuals and, thus, was a violation of the Equal Protection Clause

Most significantly, in United States v. Windsor the Roberts Court refused to backtrack on the expansion of homosexuals’ rights under the Due Process Clause in Lawrence and under the Equal Protection Clause in Romer, instead choosing to expand homosexuals’ rights under the Constitution by declaring the nation’s Defense of Marriage Act (“DOMA”) unconstitutional, as it violated basic due process and equal protection principles.

Thus, the Supreme Court has reaffirmed and expanded implied fundamental rights and equal protection under the law for gay men and lesbians during a period of political dominance by social conservatives, evangelical Christians, and other groups who view the protection of their definition of family values as a central mission of government. I have argued that the Supreme Court surprisingly—or, more accurately, unsurprisingly—has either sustained doctrine in opposition to the core values of the Republican Party or expanded individual rights in these doctrinal areas.