Susan Frelich Appleton (Washington University in Saint Louis - School of Law) has posted Obergefell's Liberties: All in the Family (Ohio State Law Journal, Vol. 77, No. 5, 2016) on SSRN. Here is the abstract:
This Article, part of a colloquium on the Supreme Court’s 2015 case Obergefell v. Hodges, which guaranteed a right of same-sex couples to marry, makes two principal contributions to our understanding of constitutional “liberty,” both with significance for family law. The first contribution is analytic. This Article joins the debate among the Obergefell Justices, including the four dissenters, about whether Fourteenth Amendment liberty only protects against interference by the state or whether it can also compel affirmative support or government action. On close inspection, this debate not only obscures complexities that defy a clear-cut binary but also camouflages diverse conceptions of liberty found in the majority opinion itself. Analysis of four different readings of “liberty” in Obergefell’s majority opinion reveals that marriage — the substantive issue in the case — and its distinctive features account for much of this messiness and multiplicity.
This Article also makes a theoretical contribution by exploring the relationship between constitutional law and family law that the Court’s liberty rulings have forged. The usual approach emphasizes the impact of constitutional doctrine on family law, specifically how the Court’s liberty rulings have required substantive changes in laws governing the family. By contrast, this Article turns to the unexamined mirror image, exposing and theorizing how family law principles, assumptions, and values have infiltrated and shaped constitutional doctrine, including doctrine disputed in Obergefell. A survey of the constitutional case law limiting obligations owed by the state reveals that these precedents are “all in the family,” in the sense that they all raise issues of concern to family law. These cases, along with those applying the Constitution to expand access to marriage and divorce, suggest the influence of family law’s policy of identifying private sources of support for dependent members of society. Had the Obergefell majority explicitly acknowledged and embraced this family law policy in recognizing a constitutional right to marry for same-sex couples, it could have avoided some of the criticism and confusion that the opinion has sparked.