18. The Right That Opens the Door

Marriage, family, and the architecture of liberty

There are days when the Constitution feels like a locked house, full of rooms we aren’t always allowed to enter. For much of our history, people stood outside, knocking: interracial couples, incarcerated spouses, teenage fathers who couldn’t afford child support. The question wasn’t just who gets in, but what kind of love counts as worthy of protection.

And the front door to all of this? Marriage.

Not marriage as paperwork or party planning, but as a marker of legal belonging. A choice so intimate and yet so regulated that the state’s role in it reveals the deepest seams of constitutional doctrine: liberty, equality, dignity, and the power to define your own life.

Before we get to Obergefell v. Hodges (the landmark case that recognized same-sex couples’ right to marry) we need to understand the foundation. Because long before the Court uttered the word “gay,” it had already declared marriage a fundamental right. That phrase—“fundamental right”—would become the doctrinal thread that pulled everything else into place.

Loving v. Virginia (1967): Love Against the Law

Mildred and Richard Loving were arrested in the middle of the night, dragged out of bed for the crime of marrying across racial lines. Virginia called it a felony. The Supreme Court called it unconstitutional.

Loving was about more than race. It was about the idea that the state cannot dictate the terms of love and family. Chief Justice Warren wrote that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.” With that sentence, marriage became a constitutional right under both equal protection and substantive due process.

The state, the Court said, has no business policing who you love, or how you seal that love with a vow.

Zablocki v. Redhail (1978): When Bureaucracy Blocks the Aisle

What happens when the government lets you love but not marry?

Roger Redhail was a poor teenager who had fathered a child out of wedlock. Under Wisconsin law, he couldn’t marry anyone unless he paid off his child support—money he didn’t have. The state framed this as fiscal responsibility. The Court saw it as unconstitutional interference.

Zablocki reminded us that the right to marry isn’t just about ceremony; it’s about access. It’s not a reward for good behavior. It’s not contingent on wealth. If marriage is a fundamental right, then laws that burden it must meet the highest standard of scrutiny.

Turner v. Safley (1987): Vows Behind Bars

In Missouri, inmates could only marry with a warden’s permission—and only for “compelling” reasons. Love wasn’t enough.

The Court struck that down. Even people behind bars, it said, don’t lose the right to make meaningful choices about their intimate lives. Turner was powerful because it made clear: marriage is not a privilege granted by the state. It is a liberty the Constitution protects, even in the most restricted circumstances.

Who Gets to Be a Family?

The Court didn’t stop with marriage. It began to map the boundaries of family itself.

In Moore v. East Cleveland (1977), the city tried to define “family” so narrowly that a grandmother raising her grandson didn’t count. The Court said no. Family is more than legal paperwork: it’s tradition, care, shared living. You don’t get to redraw those lines for zoning efficiency.

But in Village of Belle Terre v. Boraas (1974), the Court upheld a law banning unrelated roommates from living together in certain neighborhoods. Here, the Court made a quiet distinction: families made by blood or law are constitutionally protected. Voluntary living arrangements? Not so much.

That tension—between the families we choose and the ones the law prefers—still echoes today (see, e.g., here and here).

Parental Rights and the Puzzle of Biology

Troxel v. Granville (2000) reinforced a parent’s right to raise their children without undue interference. Grandparents wanted visitation; the mother objected. The Court sided with her. Parenting, it said, is a core liberty that the state cannot casually override.

But in Michael H. v. Gerald D. (1989), biology lost to legal tradition. A man who fathered a child with a married woman wanted visitation. The Court said no. The child was born into a marriage, and that structure (however imperfect) held legal priority over biological truth.

It’s a case that still raises hard questions: What makes a father? DNA? Marriage? Time? Love?

The Shift Toward Dignity

These cases tell a story of deep ambivalence. The Court recognizes love, marriage, and family as essential liberties. But it also draws boundaries, e.g., around race, wealth, incarceration, biology, and tradition. Sometimes it expands rights. Sometimes it reins them in.

But something begins to change here, subtly at first.

The language of “liberty” starts to make room for something more: dignity. You’ve heard this note before—Casey gave it memorable voice: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That line marked a shift in how the Court spoke about personal freedom—not just as privacy from state intrusion, but as the freedom to define yourself in a way that the law must recognize.

In the marriage and family cases, that seed starts to take root. What emerges is a deeper idea: that constitutional rights don’t just shield you from harm; they also affirm your humanity. That liberty and dignity travel together. And that when the state denies someone the right to marry, or the right to be seen as a parent, or the right to live with those they call family, it’s not just violating privacy—it’s erasing identity.

And it’s that shift—from privacy to dignity—that sets the stage for the gay rights cases to come. Starting with Bowers v. Hardwick, the Court fumbled the moment, treating intimacy between men as a private indulgence, not a dignified liberty. But later cases would rewrite that script. They would pull dignity to the forefront, insisting that gay and lesbian Americans deserved not just privacy in the bedroom, but equality in the eyes of the law.

So before we talk about sodomy laws and sexual orientation and the long road to Obergefell, remember this:

Marriage was never just about rings and licenses. It was about who gets to belong. Who gets to be seen. And what the Constitution means when it says you are free.