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

Abstract

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.