Document Type

Article

Publication Date

Winter 2019

Publication Title

Catholic University Law Review

Volume

68

Issue

1

Pages

87-135

Publisher Name

THE CATHOLIC UNIVERSITY OF AMERICA COLUMBUS SCHOOL OF LAW

Abstract

Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But there too the Court never explained what the connection was or whether the two doctrines must always be understood as operating together. As a consequence, lower courts and the Supreme Court itself are left without much guidance when deciding future cases seeking to expand the range of protected interests. In his Article, Vincent Samar offers a solution to this problem by subsuming fundamental rights doctrine and Equal Protection analysis under a broader theory of the person, understood collectively, that utilizes personhood’s centrality of freedom and well-being to further clarify how the two doctrines operate together so as to aid the development of criteria for resolving future cases seeking to expand the range of protected interests.

Comments

Author Posting © Catholic University Law Review, 2019. This article is posted here for personal use, not for redistribution. The article was published in Catholic University Law Review, Volume 86, Issue 1, Winter 2019, https://scholarship.law.edu/lawreview/vol68/iss1/8/

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.

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