Monday, June 29, 2015
It's difficult to find a silver lining in the case decided last Friday, but I'm going to try to offer just one: in Kennedy's discussion of substantive due process, he dropped neither Roe nor Casey in his citations. Casey's "sweet mystery of life" passage would have seemed particularly apt, given that Obergefell's definition of liberty builds upon that phrase's postmodern quest for identity-creation more than anything we've seen since. "At the heart of liberty is the right to define one's concept of existence, of the universe, and of the mystery of human life"...and, according to Obergefell, to "define and express [one's] identity." Kennedy cited Griswold (6 times) and Eisenstadt too, but neither Roe nor Casey. Yes, both cited cases concern privacy within the marital state, but Obergefell wasn't at all about privacy within the marital state.
From the Opinion of the Court:
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972)
Gives one a bit of hope that Kennedy's "better informed understanding" of liberty no longer includes the right for a mother to end the life of her unborn child...