The petitioners in last year’s historic same-sex marriage case cited most of the Supreme Court’s canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control and the right to guide the upbringing of one’s children, was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases. Not once, however, did the petitioners or the majority in Obergefell cite the Court’s most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade.
* Professor of Law, University of Texas School of Law. I am grateful to Judy Coffin, Joey Fishkin, Jim Fleming, Willy Forbath, Linda Greenhouse, Linda McClain, Doug NeJaime, Reva Siegel, and the participants in the Gender, Law and Policy Colloquium at Boston University School of Law for their thoughtful comments on this piece, and to Kelsey Chapple for excellent research assistance.