In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union with another person. However, drawling from Justice Douglas’ “penumbras principle” from Griswold v. Connecticut, this Note argues that interpreting the right to marriage to include its peripheral rights, like cohabitating, is the more principled approach. Using this approach, public housing authorities as government entities must prove that policies that disqualify ex-felons and arrestees from residing on their premises—even when their spouses are current residents—are necessary to further a compelling interest and narrowly tailored to be constitutional. Recognizing that a penumbra approach to interpreting the right to marriage would nonetheless leave non-marital families subject to broad governmental interference, this Note concludes by reasoning that non-marital families would have a strong argument that the differential treatment violates the Equal Protection Clause.
Families Belong Together: The Path to Family Sanctity in Public Housing,
Nw. J. L. & Soc. Pol'y.
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