Unhinging Same-Sex Marriage from the Constitutional Canon: The Search for a Principled Doctrinal Framework

63 Emory L.J. Online 1, 2014

9 Pages Posted: 23 Aug 2014

See all articles by Anthony Michael Kreis

Anthony Michael Kreis

Georgia State University - College of Law

Date Written: August 21, 2014

Abstract

This essay examines dissenting opinions from Justice Scalia and Justice Alito in Windsor v. United States. The dissenters, joined by Justice Thomas, asserted that a fundamental rights analysis requires a granular-level inquiry to determine whether same-sex marriage is a new, distinct fundamental right deeply rooted in national tradition and history. This is a sharp deviation from precedent expounding the freedom to marry. To highlight this, the essay reviews prior cases concerning prisoners' right to marry and interracial couples’ right to marry. From this historical analysis, the essay concludes that the Court has never examined claims concerning the fundamental right to marry from the narrow level of abstraction Justice Scalia and Justice Alito argued for in Windsor.

Keywords: same-sex marriage, substantive due process, constitutional law, fundamental rights, Windsor v. United States, legal history, civil rights

Suggested Citation

Kreis, Anthony Michael, Unhinging Same-Sex Marriage from the Constitutional Canon: The Search for a Principled Doctrinal Framework (August 21, 2014). 63 Emory L.J. Online 1, 2014, Available at SSRN: https://ssrn.com/abstract=2484928

Anthony Michael Kreis (Contact Author)

Georgia State University - College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

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