This Article uses the historical sweep of the Due Process Clause to evaluate the merits of Obergefell’s majority and dissenting opinions. Specifically, the Article explains why the Due Process Clause’s prohibition on arbitrary punishments in general—and legislative judgments in particular—invariably mandates the judicial nullification of arbitrary and irrational legislative acts. What exactly constitutes a “legislative judgment” and how much deference courts should exercise in examining legislative acts are the crucial and largely unanswered questions lying at the heart of the Obergefell case (and in substantive due process cases in general). Although the Obergefell Court’s discussion focuses on a single case, it reflects a larger jurisprudential inquiry some 800 years in the making: What are the limitations on government power and what is the judiciary’s role in enforcing those limitations?
Matthew Grothouse, Implicit in The Concept of Ordered Liberty: How Obergefell v. Hodges Illuminates the Modern Substantive Due Process Debate, 49 J. Marshall L. Rev. 1021 (2016)