Same-Sex Marriage and Due Process Traditionalism

Ronald Turner*

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide that the federal and state governments shall not deprive persons of life, liberty, or property without due process of law.[1] More than a guarantee of procedural due process, it is now well settled that a “substantive component” of the clauses protects “individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’”[2] Government cannot “infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”[3] Substantive due process[4] law and doctrine are thus established (but, for some, controversial) features of constitutional law.[5] In a recent ruling, the Sixth Circuit rejected a challenge to anti-same-sex marriage laws and held, among other things, that the Due Process Clause did not provide or protect a fundamental right to marry a person of the same sex.[6]

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*Alumnae Law Center Professor of Law, University of Houston Law Center. J.D., 1984, University of Pennsylvania Law School; B.A., 1980, Wilberforce University. The author acknowledges and is thankful for the research support provided by the Alumnae Law Center donors and the University of Houston Law Foundation.

[1].   See U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”); id., amend. XIV § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law”).

[2].   Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

[3].   Reno v. Flores, 507 U.S. 292, 302 (1993).

[4].   “Substantive due process” is a phrase “that borders on oxymoron.” Akhil Reed Amar, America’s Unwritten Constitution: The Precedents And Principles We Live By 119 (2012); see also John Hart Ely, Democracy And Distrust: A Theory of Judicial Review 18 (1980) (“‘[S]ubstantive due process’ is a contradiction in terms—sort of like ‘green pastel redness.’”).

[5].   See McDonald v. City of Chicago, 561 U.S. 742, 811, 130 S. Ct. 3020, 3062 (2010) (Thomas, J., concurring in part and concurring in the judgment) (“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”); see also Philip Bobbitt, Constitutional Fate: Theory of the Constitution 147 (1982) (“Substantive due process is not a function of politically aggressive judges who have lost their heads and are acting as would-be legislators, abandoning any sense of judicial self-restraint. Rather, the doctrine is the necessary product of the superimposition onto a state system of plenary authority, of a federal court system committed to preserving those individual liberties that animated the limited federal Constitution.”).

[6].   Deboer v. Snyder, 2014 U.S. App. LEXIS 21191, at *55 (6th Cir. Nov. 6, 2014).