Protecting the Anti-Oppression Legacy of Obergefell After Dobbs

Authors

Tracy Turner

Document Type

Article

Abstract

(Excerpt)

This Article contributes to the task of revitalizing Justice Kennedy’s analysis after its absence from Dobbs by explaining the inadequacies not only of the Glucksberg substantive due process test, but also of the Court’s interpretation of the Equal Protection Clause. The flaws in equal protection doctrine include the Court’s overly narrow view of which groups are entitled to protection as “suspect classifications” and its failure to address unintentional government support of systemic discrimination. When these gaps in equal protection doctrine are viewed together with the gaps in the Glucksberg test for substantive due process, the need for Justice Kennedy’s anti-oppression approach becomes even more clear than an isolated consideration of due process would suggest. The Article also adds specificity to Justice Kennedy’s approach by proposing a new framework for its application that is built on precedent and that seals the gaps in Fourteenth Amendment jurisprudence without spilling over into the wild west of judicial policymaking of concern to conservatives. Its third contribution is to ground Justice Kennedy’s approach in textual and originalist arguments of the type that several Justices sitting on the Court currently seem to favor.

Part I of the Article covers the Glucksberg test and uses Bowers v. Hardwick, the Court’s since-reversed opinion upholding anti-sodomy laws, and the recent opinion in Dobbs to identify the problematic aspects of the test’s focus on historical analysis of rights. Part II explains why equal protection doctrine fails as a possible alternative to substantive due process that could adequately protect identity groups from government-supported oppression. Part III explains the promising new path that Justice Kennedy’s opinion in Obergefell laid out to address the gaps in the Glucksberg test and equal protection doctrine. It also explains the failure of the majority opinion in Dobbs to apply Obergefell’s analysis. Part IV defends Obergefell’s anti-oppression approach to due process by grounding it in textualist and originalist arguments regarding the Fourteenth Amendment. Part V attempts to remedy the lack of a specific framework for Obergefell’s approach that can respond to conservative criticisms by using Obergefell and other Court opinions to derive boundaries. Part VI establishes that despite its silent repudiation of Obergefell’s analysis, Dobbs leaves room for the proposed framework. It also explains the relevance of the framework to recent legislative initiatives affecting the queer community.