Substantive Due Process: The Only Way to Safeguard LGBTQ+ Rights in America

In June 2022, Dobbs v. Jackson Women’s Health Organization (2022) overturned the fifty year precedent set by Roe v. Wade and Casey v. Planned Parenthood (1973). The majority opinion stated that “nothing in the opinion should be understood to cast doubt on precedents that do not concern abortion,” particularly those related to rights protected under the Fourteenth Amendment’s Due Process Clause [1]. In a concurring opinion, Justice Clarence Thomas offered an alternative interpretation: nothing in the Dobbs opinion invalidates other Due Process Clause precedents involving the Fourteenth Amendment’s protection of life, liberty, and property from being unfairly taken away—yet. He states that “in future cases, we should reconsider all of this Court’s substantive due process precedents” because “any substantive due process decision is ‘demonstrably erroneous.’”[2] Many conservative justices—especially originalists and textualists—believe substantive due process is judicial overreach. Substantive due process decisions, however, have created an unwritten constitution providing critical protection for LGBTQ+ rights that would otherwise be easily reversed and restricted. Decisions made under this framework must be defended against conservative attempts to reduce the power of substantive due process.

The Rise and Meaning of Substantive Due Process

Many landmark cases guaranteeing rights for minority groups rest on the Equal Protection Clause, the Due Process Clause, or a combination of the two. Both clauses stem from the Fourteenth Amendment, which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[3] While debates concerning the Equal Protection Clause are straightforward, simply concerning what rights should be secured for all citizens, Due Process Clause decisions are more multifaceted, involving two categories. Procedural due process examines whether the legal procedure of depriving “life, liberty, or property” is just, while substantive due process assesses whether this governmental deprivation is democratically justified through principles in the first place [4]. Substantive due process primarily defends and expresses implicit rights: rights that are heavily implied by tradition and protected for dominant societal groups but unnecessarily stripped from the marginalized.

Though now used in conjunction with the Equal Protection Clause to protect rights such as the liberty to marry without discrimination based on sexuality or race, substantive due process finds its origin in an unexpected location: Lochner v. New York (1905). Lochner held that the liberty to contract was a fundamental right, and consequently struck down the state of New York’s policy that restricted the number of hours bakers can work. In framing the case this way, the Supreme Court connected substantive due process to the Equal Protection Clause. The majority opinion in Lochner states that “[t]he legislation must affect equally all persons engaged in the business of baking in order to conform to this provision of the Fourteenth Amendment. It [currently] really affects but a portion of the baking trade.”[5] Lochner’s use of equality to assess the constitutionality of a law provides a framework for using the Equal Protection Clause to protect unenumerated rights in conjunction with substantive due process. The link between these two clauses in the Fourteenth Amendment are later applied to solidify the right to gay marriage.

Importantly, Lochner also established that these unenumerated, equality-motivated rights should be held above state power. The Fourteenth Amendment explicitly applies to state—as opposed to federal—government. The Lochner majority emphasizes the power of the Due Process clause by stating that “[t]here is a limit to the valid exercise of the police power by the State [ . . . ] Otherwise the Fourteenth Amendment would have no efficacy and the legislatures of the States would have unbounded power.”[6] Without substantive due process, state legislatures could be able to restrict any civil liberties they desired so long as the process through which they did it was fair and legal as mandated by procedural due process. Lochner provides a strong assertion that the people’s right to equality is more important than the rights of the states to impose restrictions on liberty.

Monumental Cases: How Substantive Due Process Provides Essential Protection for LGBTQ+ Rights

To this day, a small number of landmark Supreme Court cases provide the only protection for marriage equality within the LGBTQ+ community. To understand these specific cases, it is first necessary to understand its underlying philosophy as proposed in Loving v. Virginia (1967), the first Supreme Court case that explored the concept of marriage as a fundamental right. Loving, the case which declares that banning interracial marriage is unconstitutional, derives its logical power from portraying discrimination as contrary to the Equal Protection Clause and the Due Process Clause. The majority opinion states that they “reject the notion that the mere ‘equal application’ of a statute containing racial classifications is enough” to justify keeping the statute in spite of the Fourteenth Amendment’s “proscription of all invidious racial discriminations''[7] This deviates from precedent—and, indeed, perhaps even from the intention of the Framers —as it declares that equality of marriage is a fundamental constitutional protection. Prior to Loving, the right to interracial marriage was not yet codified. Notably, it is Loving’s appeal to equal protection that enabled the creation of this new constitutional right despite the abundant precedent of discriminatory restrictions. The case also states that “these statutes . . . deprive the Lovings of liberty without due process of law . . .[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”[8] This expresses a previously uniterated right to marriage and links it to both the Equal Protection Clause and the Due Process Clause. It also situates this unenumerated right within historical tradition regarding the importance of marriage. Linking traditional protections with equal protection is the heart of substantive due process decisions, and this judicial reasoning is exemplified here.

Similar reasoning is used in Lawrence v. Texas (2003) to establish the right to intimacy. The case overturned Bowers v. Hardwick (1986) by allowing non-heterosexual couples to engage in sexual intimacy in the privacy of their homes. It states that “the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.”[9] This statement explicitly places unenumerated rights—specifically, “the right [of LGBTQ+ people] to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons,”—above the police power of the state legislature [10]. ​​Lawrence extends the understood right to intimacy in heterosexual relationships to all relationships.

Obergefell v. Hodges (2015) combines reasoning in Lawrence and Loving to extend the right to marriage to the LGBTQ+ community. This case legalized gay marriage, stating that “the fundamental liberties protected by the Fourteenth Amendment’s Due Process ​​Clause extend to … intimate choices defining personal identity and beliefs.”[11] It also solidified the connection expressed in Loving between the Equal Protection Clause and the Due Process Clause by directly asserting that “[t]he Due Process Clause and the Equal Protection Clause are connected in a profound way.”[12] The connection between due process and equality makes the conservative objection, voiced by Scalia, that “the Due Process clause . . . only guarantees process” actively anti-progress. The undeniable importance of due process decisions in granting marginalized citizens equal access to privileges that are already enjoyed by the majority group, like the right to marriage, reveals due process decisions to be more than a “departure from text.”[13] Rather, these due process decisions restore equality that should have been present originally. Obergefell was the key case that legalized gay marriage and is still the only source case that provides protection. Though substantive due process provides the key mechanism through which rights of marginalized groups are protected, conservative justices still object.

Why an Unwritten Constitution? Criticism and Refutations

Conservative justices often strongly oppose substantive due process, declaring that it is judicial overreach. These opposing opinions can be generalized into two camps with varying degrees of rigidity: broad textualism and strict originalism. A leading proponent of this first category is Justice Scalia. He believes that “the text is the law, and it is the text that must be observed,” defining appropriate observation of this textualism to mean acknowledging “the broader purposes that a statute is designed . . . to serve” and also remaining conscious of the fact that “new times require new laws” while staying away from judicial overreach. Though this approach seems beneficial in theory, at best, Scalia’s philosophy contains major contradictions, and at worst, implementing it actively serves to harm marginalized communities. Scalia’s argument requires that he adhere to discriminatory positions. This specific brand of textualism involves interpreting the text as the words were originally meant as opposed to focusing on the consequences the Framers would have intended. If Scalia is really a textualist as he defines it—agreeing that “we do not care what the legislature meant; we ask only what the words mean”—then his critique of substantive due process decisions allowing for marriage equality are blatantly self-contradictory [15]. Though his definition of textualism would allow for the true wording of the Equal Protection Clause to encompass marriage equality—given the relatively clear interpretation of what equal protection for all “privileges or immunities of citizens of the United States” means—he inconsistently applies this definitional intent approach in practice. In his Obergefell dissent, he writes that “when it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.”[16] This is a direct appeal to the meaning implied by the legislatures, not merely their words and context—an outright contradiction to his professed legal philosophy. If Scalia truly applied textualism to this case, he would acknowledge that marriage as a legal institution is a privilege secured for citizens of the United States, and, therefore, should not be abridged by state governments—because that is the provision of the Fourteenth Amendment. This, therefore, shows that Scalia abandons his asserted principles in favor of inserting legislative intent so that he can oppose LGBTQ+ rights. Judges who follow this philosophy interpret textualism similarly, ignoring that the most important substantive due process decisions are designed to increase equality.

While broad textualism interprets the meanings of texts in the context of how the words were originally used, another framework, strict originalism, is used in a far more restrictive manner, and is spearheaded by Justice Clarence Thomas. In Dobbs, Thomas states that “substantive due process exalts judges at the expense of the People from whom they derive their authority . . . the Court’s approach for identifying those “fundamental” rights unquestionably involves policymaking rather than neutral legal analysis”[17] (internal quotation marks omitted).​​ Indeed, a tradeoff necessarily exists between granting judges more power and protecting rights missing from legislation, but that does not mean that rights should be left unprotected in favor of curbing judicial power. This argumentation ignores that substantive due process has primarily been used to guarantee equality for those whose rights were previously ignored by the Framers—people who are not straight, white, property-owning men. Most critically, Justice Thomas claims that substantive due process threatens constitutional law as a whole because “once this Court identifies a ‘fundamental’ right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others”[18] This implies the belief that separate classes of persons exist under United States law, which is subversive to the principle of democracy as defined as equality for all citizens. He also claims that the Court protects unenumerated rights—their so-called “preferred rights” —more than they protect other rights, which makes substantive due process harmful [19]. However, these rights prove more essential to people in the modern-day fight to reduce discrimination, which is why justices are willing to risk controversy to protect them. His specific concerns with contraception and intimacy reveal his unwillingness to decrease the divide between different groups. This unwillingness only proves the value of substantive due process. The very link to the Equal Protection Clause which he critiques is essential to its power to create equality and guard citizens from undue governmental restraint.

Thomas supplements his argument against joining equal protection and substantive due process by narrowing the definition of liberty. ​He stated in his dissenting Obergefell opinion that “. . . it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint.”[20] He further claimed that “[a]s a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment.”[21] This strict reading of the Constitution and legal precedent provides an easy way out from interacting with arguments in favor of substantive due process. A right to liberty—liberty beyond freedom to physically move—must exist under the Due Process Clause because the clause would be meaningless without it. Creating fair legal processes by which to restrict liberty is simple, but preserving rights is much harder. Furthermore, claiming that liberty refers only to “freedom from physical restraint” threatens our nation’s values far more than expanding rights ever could. Indeed, it seems contradictory to the founding essence that America is the “land of the free,” and suggests that this merely implies physical freedom.[22] Principles of innate human rights underpin our entire governmental system. Though defining fundamental liberties may prove beyond the scope of the judiciary, bestowing this power upon the judiciary creates more good than ignoring these rights and allowing inequality to persist. Other branches of the legal system have repeatedly failed to protect marginalized communities, so using the judiciary is the best mechanism to preserve these rights.

No Other Methods: Substantive Due Process and its Necessity Today

Even if, despite the arguments presented, substantive due process constitutes judicial overreach, there are no other viable methods to protect LGBTQ+ rights. In the time of our nation’s founding, these rights were not intended to be included in the Constitution. In Scalia’s Obergefell dissent, he states that “when the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.”[23] However, he ignores that in 1868, slavery had only been abolished three years prior, segregation and Jim Crow ruled, and women did not have the right to vote. A lack of previous debate about a right does not mean the right should not exist now. If we passed judicial decisions based on previous societal frameworks, our current society would be incredibly repressive for anyone not originally in power in America. Textualist principles directly support a deeply unequal America—perhaps revealing the tendencies even of originalists towards judicial overreach in inserting their own opinions. Furthermore, this judicial philosophy would recommend reexamining cases concerning these rights and removing them due to “judicial legislation.” As proven earlier, these cases are often the only way that marginalized groups can access constitutional protection to privileges already enjoyed by the majority because the Framers of the Constitution had a far more limited understanding of citizenship than we now have. If all judges adopted textualism instead of other judicial principles, progress allowing marginalized groups equal participation in American society will be eroded. If originalists truly wanted to uphold democracy, their philosophy would focus on allowing all citizens equal access to rights, not on the legislative power of judges.

Substantive due process is essential to establishing unenumerated rights as critical for protection, and it has delivered more constitutional protections to marginalized groups by forcing states to abide by practices that support equality. However, the doctrine is vulnerable to attack by originalist and textualist readers of the Constitution. Now that Roe v. Wade (1973) has been overturned, the doctrine is more vulnerable than ever before. To avoid sliding down the slope of progress in terms of conferring rights to the marginalized, justices must defend the doctrine of substantive due process, highlight its compatibility with textualism through creating equality, and urge for changes in legislation. The questioning of one substantive due process decision easily leads to the questioning of more, and we must reinforce the legality by which these landmark cases stand.

Bibliography

1. Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022)

2. 597 U.S. __ (2022)

3. The Constitution of the United States: A Transcription. National Archives, U.S. National Archives and Records Administration, 7 April 2023. archives.gov/Founding-docs/constitution-transcript.

4. Chemerinsky, Erwin. “Substantive Due Process.” Duke Law Scholarship Repository, November 1998. scholarship.law.duke.edu/cgi/viewcontent.cgi? article=1638&context=Faculty_scholarship. Transcript.

5. Lochner v. New York. 198 U.S. 45 (1905)

6. Lochner v. New York. 198 U.S. 45 (1905)

7. Loving v. Virginia, 388 U.S. 1 (1967)

8. Loving v. Virginia, 388 U.S. 1

9. Lawrence et al v. Texas. 539 U.S. 558

10. 539 U.S. 558

11. Obergefell v. Hodges, 576 U.S. 644 (2015)

12. 576 U.S. 644 (2015)

13. Scalia, Antonin. Common-Law Courts in a Civil-Law System. Princeton University Press, 1997.

14. Scalia, Antonin. Common-Law Courts in a Civil-Law System. Princeton University Press, 1997.

15. Ibid.

16. Obergefell v. Hodges, 576 U.S. 644 (2015)

17. Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022)

18. Ibid.

19. Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ Supreme Court, 2022.

20. Obergefell v. Hodges, 576 U.S. 644 (2015)

21. Ibid.

22. Obergefell v. Hodges, 576 U.S. 644 (2015)

23. Ibid.