Howard  Slugh had an interesting article in the National Review Online on April 10, entitled “Obergefell’s Toxic Judicial Legacy.”  At the time the case was decided (2015) I wondered whether the language used by Justice Kennedy establishing a right to homosexual marriage might be used to claim other new rights not mentioned in the Constitution and barely even imagined at the time.  I remember that a few others shared my concern.  It now appears my and others’ fears are beginning to be realized.  Granted we haven’t seen a lot of it, but new legal theories and new rights have always started “small.”  As more and more judges accept the theories, theories become legal precedent.  

To get some context, you will remember that the United States Supreme Court in Obergefell v. Hodges, “found” a right to homosexual marriage in the Due Process and Equal Protection clauses of the Constitution.  The language used by Justice Kennedy in writing the majority (5-4) opinion was at best almost “mystical.”  Here are some of the more important phrases:

“The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” (page 10, Opinion)

“That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements.  History and tradition guide and discipline this inquiry but do not set its outer boundaries.” (Ibid., emphasis added)

“When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” (page 11)

“Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” (page 20)

The first excerpt is the most interesting for my purposes, and the author of the article.  As Slugh writes, “Previously, a Supreme Court precedent titled Washington v. Glucksberg held that judges could recognize constitutional rights only if they were ‘deeply rooted in’ American ‘history and tradition.’ Justice Kennedy dismissed this standard as unduly constraining judges’ power’”  Notice that in the decision, Kennedy dismissed that standard as subordinate to the judges’ reasoning in looking for new rights.  Slugh then goes on to mention some examples of cases that have invoked this new standard.

1. “A case titled Juliana v. United States presents an ominous warning as to what lies ahead. A district-court judge in Oregon used Obergefell’s license to fashion a new individual right to a “climate system capable of sustaining human life.” The judge adopted Justice Kennedy’s “reasoned judgment” standard and wrote, “Exercising my ‘reasoned judgment,’ . . . I have no doubt that the right to a climate system capable of sustaining human life” is a fundamental constitutional right.”
2. “In Hodges v. Schmidt, an appellate court in Kansas cited Obergefell while establishing a right to abortion in Kansas’s constitution. The plaintiffs challenged an abortion restriction under the state constitution, and not under the federal constitution. This required the court to determine, for the first time, whether the Kansas constitution contained its own right to abortion.”
3. “In Morris v. Brandenburg, a district-level judge in New Mexico discovered a fundamental right to assisted suicide in New Mexico’s constitution — the very “right” that the United States Supreme Court refused to recognize in Glickburg.”
4. And here is a classic: “In Doe v. Rector & Visitors of George Mason Univ., the plaintiff, a student expelled from the university, claimed that he had a constitutionally protected right to engage in “BDSM sexual activity.” The judge recognized that these arguments would have been futile under the Glucksberg framework because “there is no basis to believe” that a right to BDSM “is deeply rooted in the nation’s history.” However, he concluded that the plaintiff’s argument merited further analysis following Obergefell.”

By any standard except the most extreme form of “Living Constitution” apparoach to interpretation, this is a quite disturbing development.  Now it is possible, and in some of these cases it occurred, that higher courts overturned them.  But it seems incredible that a judge or judges even entertained them and in some cases adopted the new theories of rights.  I would add that this kind of judicial activism has significant implications for religious liberty cases, if it continues to grow as a trend.