The same constitutional principle that may inform a Supreme Court decision in favor of same-sex marriage protects unpopular beliefs about marriage. So argues Mark Rienzi, a law professor and lawyer at the Becket Fund for Religious Liberty, in a thoughtful piece in the Stanford Law Review, Substantive Due Process as a Two-Way Street: How the Court Can Reconcile Same-Sex Marriage and Religious Liberty.
Rienzi contends that Supreme Court decisions that recognize and protect rights not expressly listed in the Constitution's text rest upon the implicit premise that those who do not wish to support the exercise of those rights have liberty interests too. He argues that if the Court holds that same-sex marriage is constitutionally required, it should make plain that "[t]he same Fourteenth Amendment that protects the decision to exercise the right [to marry] simultaneously protects the decision not to participate in or support the exercise of the right."
Conservatives should use Rienzi's insight as an opportunity to reevaluate their long-standing antipathy to "substantive due process" -- a concept which prominent conservative jurists and scholars, including Judge Robert Bork and Justice Antonin Scalia, have long disparaged and, indeed, denied. But, as political scientist and natural-rights scholar Professor Hadley Arkes has argued, our "constitutional order began with a deep premise that people had a presumptive claim to freedom in all dimensions of their lives... The burden of justification fell to the government whenever it would override those private rights." That principle informs Court's substantive due process decisions, and there is no time like the present for conservatives to reconsider its value.
Before critics coined the term "substantive due process" as a pejorative, people tended to use the more precise and complete term "due process of law." The concept can be traced back to the "law of the land" clause in the Magna Carta and was understood by the founding generation and the ratifiers of the Reconstruction Amendments to refer to inherent limits on governmental authority. When the government deprives people of life, liberty, or property without any rational, public-oriented justification, its actions are not properly considered "law" -- they are mere exercises of power, indistinguishable from the acts of criminal gangs.
After the Civil War, state courts and, later, the Supreme Court, used the Due Process of Law Clause to safeguard individual freedom. The "liberty" protected by the clause was understood to encompass the innumerable free actions that individuals can take without violating the rights of others. In Meyer v. Nebraska (1923), the Court explained that liberty "denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience." In Lochner v. New York (1905), the Court struck down a law that prohibited New Yorkers from working in a bakery more than ten hours per day or 60 hours per week; in Pierce v. Society of Sisters (1925), it struck down a law outlawing private schools. In all of these cases, it found that the government had restricted individual liberty without demonstrating a substantial connection to any constitutionally legitimate end.
In the late 1930s, a Court dominated by Roosevelt appointees fundamentally transformed American judicial review. FDR's justices believed that the federal government and state governments were being held hostage by a reactionary judiciary that stood in the way of progress. To remove that perceived obstacle, they broadly construed Congress's power to regulate interstate commerce and limited judicial protection of individual rights to infringements upon certain of the guarantees (although not all of them) specifically enumerated in the Bill of Rights, as well as laws targeting politically powerless minorities.
The notion that the government must always have an honest, reasoned explanation for restricting people's liberty eventually resurfaced. In Griswold v. Connecticut (1965), a case in which the Court struck down a Connecticut law prohibiting doctors from prescribing contraceptives, Justice William O. Douglas, writing for the majority, reasoned (in language that has been ridiculed ever since) that "specific guarantees" set forth in the Bill of Rights have "penumbras, formed by emanations" from general (nontextual) "guarantees that help give [the guarantees in the Bill of Rights] life and substance." He divined that the law infringed upon a "zone of privacy" created by the interaction between a nontextual right to privacy and the First, Third, Fourth, Fifth, and Ninth Amendments. Justice Hugo Black in a vigorous dissent accused Douglas (accurately) of relying upon "the same natural law due process philosophy found in Lochner v. New York," only without acknowledging it. In concurrence, Justice Harlan relied entirely and explicitly upon the Fourteenth Amendment and determined that the Connecticut anti-contraception law violated a right that was "implicit in the concept of ordered liberty." Justice Harlan referred to his dissent in Poe v. Ullman (1961), in which he argued (drawing upon the Court's Lochner-era cases) that the Due Process of Law Clause protects individuals' "freedom from all substantial and arbitrary impositions and purposeless restraints." Harlan's analysis anticipated later substantive due process cases to which Rienzi refers, like Planned Parenthood v. Casey (1992) and Lawrence v. Texas (2003)--the latter of which saw the Court (in terms that recall Meyer) bring "freedom of thought, belief, expression, and certain intimate conduct" under the heading of "liberty."
As Rienzi rightly notes, the language of the Court's substantive due process opinions is often imprecise. And there is room for reasoned disagreement about particular decisions. But the essential premise upon which they depend is sound, and defenders of limited government should embrace it. Not only substantive due process but liberty itself is a two-way street -- and if the government must ensure that all who travel on it do so peacefully, it did not build this road and may not deny anyone access to it.
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