ABSTRACT

In Obergefell, “Griswold liberty” was elevated to a new level when a bare majority of the Court invented a fundamental right to same-sex marriage – the result Justice Scalia predicted twelve years earlier in his Lawrence dissent.1 Writing for a 5-4 majority,

Justice Kennedy intentionally – and inexplicably – broadened the substantive due process doctrine (i.e., liberty) by holding that “liberty” encompassed, among other things, a right to intimate association, which the Court had previously inferred from the First, not Fourteenth, Amendment and a right to “equal dignity” under the law. As Justice Thomas recognized in his dissent, “the concept of ‘liberty’ it [the majority] conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.”2