Fundamental Rights in a Post-Obergefell World

32 Pages Posted: 14 Sep 2015 Last revised: 9 Mar 2016

See all articles by Peter Nicolas

Peter Nicolas

University of Washington School of Law

Date Written: August 17, 2015


In this essay, I identify and critically examine several substantive criticisms raised by the dissents in the Supreme Court’s 2015 decision in Obergefell v. Hodges, which struck down state laws and constitutional provisions barring same-sex couples from marrying within the state or having their out-of-state marriages recognized by the state.

Specifically, I address three points raised by the dissents. First, that the majority improperly framed the right at issue broadly as the right to marriage instead of narrowly as the right to same-sex marriage, conflicting with the Court’s holding in Washington v. Glucksberg that in fundamental rights cases the right at issue must be framed narrowly. This disregard of Glucksberg, according to one dissent, may lead to finding an analogous right to polygamous marriage. Second, that the right to marry sought in the case was a positive right, and that the Court thus erred in recognizing the right as fundamental under the Due Process Clause, which only protects negative rights. And finally, that the majority’s invocation of the Equal Protection Clause in tandem with the Due Process Clause in support of its conclusion was both doctrinally without support and violated the canon against unnecessarily deciding constitutional questions.

I argue that the majority’s framing of the right was consistent with Glucksberg, demonstrating that the precedents upon which it was built, while requiring specific framing, do not call for the narrowest framing possible, and in turn that the majority’s approach does not necessitate a finding of a right to polygamous marriage. Furthermore, while agreeing with the dissents that the Due Process Clause protects only negative rights, I demonstrate that the Equal Protection Clause has historically protected positive rights. Because marriage has historically consisted of a bundle of rights, both positive and negative, the majority’s invocation of both clauses was both supported by precedent and necessary to the decision. Finally, I demonstrate that the two clauses, working in tandem, prevent states from eliminating civil marriage in the future, even if they eliminate it for same-sex and opposite-sex couples alike.

Keywords: constitutional law, due process, equal protection, fundamental rights, marriage, same-sex marriage, DOMA, GLBT rights, abortion

Suggested Citation

Nicolas, Peter, Fundamental Rights in a Post-Obergefell World (August 17, 2015). Yale Journal of Law & Feminism, Forthcoming, University of Washington School of Law Research Paper No. 2015-27, Available at SSRN: or

Peter Nicolas (Contact Author)

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States


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