love, due process, same-sex marriage, Obergefell v. Hodges
Fourteenth Amendment substantive due process fundamental rights doctrine is about love. It is, at least, based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, the case in which the Supreme Court held that same-sex marriage is a fundamental right of individual autonomy and dignity.
Part I of this Article discusses the concept of love. Part II examines Justice Kennedy’s majority opinion in Obergefell and argues that it expresses unconditional love for LGBT people in tone, language, and substance. Part III argues that, in Obergefell, Kennedy’s key reasons for concluding that marriage is central to individual autonomy and is therefore a fundamental right under substantive due process, all implicitly invoke love. In fact, the proffered reasons do not make much sense unless love is understood as underlying them. Part IV discusses some of the implications of understanding Obergefell as an opinion about love.
Oh, Reginald, "Love is Love: The Fundamental Right to Love, Marriage, and Obergefell v. Hodges" (2022). Law Faculty Articles and Essays. 1237.