27. When Liberty and Equality Meet at the Altar
The constitutional architecture of Obergefell v. Hodges
By the time Obergefell reached the Supreme Court in 2015, many of the doctrinal pieces were already on the table:
Loving v. Virginia had framed marriage as a fundamental right under due process.
Lawrence v. Texas had struck down sodomy laws under liberty grounds, with equality lingering in the background.
Windsor dismantled part of DOMA by invoking both dignity and state autonomy—but never clarified the level of scrutiny sexual orientation claims deserved.
In Obergefell, the Court had a choice: go all in on equal protection, or root the decision in substantive due process. Instead, Justice Kennedy chose both.
Not as fallback options. As co-equal, co-reinforcing constitutional principles.
Equal Protection Without a Suspect Class
The most striking thing about the majority opinion is what it doesn’t do.
The Court never declares sexual orientation a suspect or quasi-suspect classification. No tiers of scrutiny are invoked. There’s no Frontiero-style inquiry into political powerlessness or immutability. That doctrinal path—already mapped out in earlier cases, and unpacked in my prior post on suspect classifications—is sidestepped entirely.
Instead, Kennedy uses equal protection as an interpretive lens. It doesn’t trigger heightened scrutiny on its own; instead, it reinforces the conclusion that denying same-sex couples the right to marry imposes an unjustifiable inequality in the exercise of a fundamental right.
This is subtle but significant. It allows the Court to avoid setting new precedent on classification, while still holding that same-sex couples are constitutionally entitled to equal access to marriage.
Due Process as the Anchor
The opinion begins with the familiar due process foundation: marriage is a fundamental right. Kennedy draws from Loving, Zablocki, and Turner v. Safley to establish that the freedom to marry is bound up with personal autonomy, dignity, and legal protection.
“Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.”
By excluding same-sex couples from that decision, states were not merely regulating marriage—they were denying access to a core liberty interest.
So far, it’s classic substantive due process.
But Kennedy doesn’t stop there.
The Turn: When Equality Meets Liberty
Roughly midway through the opinion, Kennedy turns the key:
“The right of same-sex couples to marry ... is derived, too, from that Amendment's guarantee of the equal protection of the laws.”
At this point, Obergefell becomes more than just a liberty case. It’s a case about the intersection of liberty and equality, not unlike the dynamic hinted at in Lawrence, but now stated explicitly.
The idea is this: when the state denies a fundamental right to one group of people and not another, it’s not just a liberty problem, it’s an equality problem, too. The denial becomes doubly suspect.
“The Due Process Clause and the Equal Protection Clause are connected in a profound way … Rights implicit in liberty and rights secured by equal protection may rest on different precepts … yet in some instances each may be instructive as to the meaning and reach of the other.”
That line is the jurisprudential heart of the case. Not tiers. Not classifications. But mutual illumination, each clause helping to define the outer boundaries of the other.
The Role of Dignity
For those following along with earlier posts, this is where the Yoshino “double helix” metaphor comes fully alive.
Dignity becomes the bridge between the two clauses. It is what’s harmed when liberty is denied, and what’s denied when equality is withheld. Kennedy’s reasoning is saturated with this theme:
“It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.”
“The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.”
Dignity, in this telling, is not just a moral intuition—it’s a constitutional signal that liberty and equality are being violated together. It is not a free-floating right (as Thomas warns against in dissent), but the connective tissue that animates both the liberty interest in marriage and the equality principle forbidding arbitrary exclusion.
The Dissents: Anxieties About Structure
The four dissents in Obergefell are less concerned with marriage and more concerned with method.
Chief Justice Roberts accuses the majority of usurping democratic deliberation.
Justice Scalia blasts the opinion as elite-driven social engineering.
Justice Thomas insists the Constitution protects only negative liberty—not dignity, and not positive recognition.
Justice Alito warns that the Court is imposing one contested view of marriage over others.
The dissenters in Obergefell argue that bans on same-sex marriage are constitutional because, in their view, same-sex marriage is not a fundamental right under the Court’s traditional methodology—namely, the “deeply rooted in history and tradition” test. Since they don’t see a fundamental right at stake and don’t treat sexual orientation as a suspect class, they apply only rational basis review, which is very deferential to state laws.
The majority rejects the dissenters’ narrow, tradition-bound framing. It affirms that marriage itself is a fundamental right and insists that this right cannot be limited based on the sex of the partners. By doing so, the Court sidesteps the need to declare sexual orientation a suspect class. Instead, it fuses due process and equal protection to articulate a broader principle:
If a right is fundamental, it must be extended equally.
Why It Matters
Obergefell didn’t revolutionize equal protection doctrine the way some might have hoped. It didn’t formalize new classifications or clarify scrutiny standards. But it did something equally important: it showed how doctrinal synergy (between due process and equal protection) can expand constitutional protections without rewriting the rulebook.
For those tracking the evolution of dignity in constitutional law, this case marks the moment that dignity becomes not just an expressive flourish but a doctrinal hinge, the pivot between liberty and equality.
Doctrinal notes:
Marriage as a Fundamental Right (Substantive Due Process)
Built on Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley → marriage recognized as a fundamental liberty interest.
Denying same-sex couples marriage = denial of access to a core liberty, similar to contraception (Griswold), intimacy (Lawrence), and family autonomy.
Role of Dignity - Marked shift toward a dual-clause approach rather than traditional tiered scrutiny.
What happens to equal protection doctrine when the Court chooses not to define new protected classes, but still expands rights through synthesis with due process? Is this a strength of doctrinal flexibility, or a missed opportunity for structural clarity?