Emory Law Journal Online

Volume 63

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

Anthony Michael Kreis

63 Emory L.J. Online 1 (2014)

Time and again, the Supreme Court has reinforced the bedrock principle that marriage is a fundamental right. However, when it has significantly extended that right to expand the constitutional freedom to marry, the Court has not relied upon the type of analysis advocated by Justices Scalia and Alito in its recent case, United States v. Windsor. This Essay highlights the improper formulation and application of the Due Process Clause in the dissenting opinions in Windsor through the lens of the Courtís decisions on prisonersí marriage rights and interracial couplesí marriage rights. The Essay concludes that the framework endorsed by Justices Scalia, Thomas, and Alito is an impermissible, stark departure from precedent that would introduce an element of subordination into the substantive due process doctrine. [Continue reading]