The author in the article explains the importance of Obergefell v. Hodges towards the Court’s stand on unenumerated rights. Unenumerated rights, like the right to procreate, abortion, or to use contraception, among others, are acknowledged by the Constitution with the Ninth Amendment. However, it has remained unclear for over a century on what unenumerated rights the Court should protect under the due process guarantees of the Fifth and Fifteenth Amendments (Yoshino, 2015). On the one hand, it would be embarrassing for the Court to claim that it protects no unenumerated rights. On the other hand, the Court does not have the unfettered discretion to conjure said rights. Yoshino (2015) argues that the Court has always stayed in the middle ground with two contrasting approaches. However, Obergefell v. Hodges ruling heavily favours one side than the other.
Two contrasting rulings are central to the argument made by Yoshino (2015). In Washington v. Glucksberg, the Court ruled that liberty is protected under the due process guarantees if it is deeply rooted in the Nation’s history and tradition where justice and liberty would cease to exist if the right was sacrificed. This ruling is in direct contrast with the ruling in Poe v. Ullman, where the Court was to rule on the unenumerated right to use contraception. The Court failed to solve the underlying constitutional issue of whether the law was in violation of the Constitution by claiming the case was nonjusticiable. However, Justice Harlan dissented on the grounds that the Court should have made a direct stand and articulate the standards that determine when a right should be protected under the due process guarantees. Justice Harlan’s dissent set the tone and a framework for a methodology that was later applied by the Court when making a ruling in Obergefell v. Hodges. Such is the birth of new freedom for unenumerated rights, according to Yoshino (2015).
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References
Yoshino, K. (2015). A New Birth of Freedom?: Obergefell v. Hodges. Harv. L. Rev. , 129 , 147.
