A Comprehensive Rethinking of Equal Protection Post-Obergefell: A Plea for Substantivity in Law

41 Pages Posted: 31 Aug 2018 Last revised: 3 Sep 2018

See all articles by Shannon Gilreath

Shannon Gilreath

Wake Forest University - School of Law

Date Written: August 31, 2018


Obergefell v. Hodges, the case holding that same-sex marriage is a fundamental right that states cannot deny, is widely regarded by progressives as a civil rights milestone. Lochner v. New York, on the other hand, is nearly uniformly considered by constitutional scholars, progressive or not, as a virtual epithet—one of the worst blunders in Supreme Court history. In this Article, drawing together years of my ideas and scholarship written to link substantive equality outcomes with the practice of law, I argue, from a pro-gay rights perspective, that Obergefell and Lochner are actually cut from the same cloth and ultimately that substantive due process, the engine of both decisions, will never successfully vindicate the rights of gay Americans or of other marginalized classes. I contend that, under Justice Kennedy's leadership, the Court's continued subsumption of equal protection into the due process clause actually perpetuates inequality, even when the outcome (like access to marriage) appears to promote equality. The culmination of this analysis is my proffering of a theory of equal protection that is substantive in its own right.

Keywords: Same-sex marriage, Obergefell, equal protection, substantive due process

Suggested Citation

Gilreath, Shannon, A Comprehensive Rethinking of Equal Protection Post-Obergefell: A Plea for Substantivity in Law (August 31, 2018). Wake Forest Univ. Legal Studies Paper, Available at SSRN: https://ssrn.com/abstract=3242183 or http://dx.doi.org/10.2139/ssrn.3242183

Shannon Gilreath (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-6077 (Fax)

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