Wednesday, August 3, 2016
Jill C. Engle (Pennsylvania State University, Penn State Law) has posted Comparing Supreme Court Jurisprudence in Obergefell v. Hodges and Town of Castle Rock V. Gonzales: A Watershed Moment for Due Process Liberty (Georgetown Journal of Gender and the Law, Vol. 17, No. 575, 2016) on SSRN. Here is the abstract:
The Supreme Court described a troubling “discord between the Constitution’s central protections and a received legal stricture” in its 2015 decision in Obergefell v. Hodges. Its decision in Obergefell resolved that discord in the context of the right to same-sex marriage. Unfortunately, that same discord remains in the context of marriages and other intimate relationships fraught with domestic violence because police protection for victims in these relationships is still not recognized as a due process interest. The Supreme Court faced this issue in its 2005 decision Town of Castle Rock v. Gonzales, but it declined to recognize due process property rights for domestic violence victims based on police inaction. The right to police protection, as Justice Kennedy explains in Obergefell, is a right inextricably linked with the other fundamental rights protected by the Due Process Clause of the Fourteenth Amendment. Freedom from domestic violence is a fundamental human right, and the Supreme Court should recognize it as an aspect of due process liberty, just as it does the right to marry. The due process analysis in Obergefell enables the Supreme Court to overturn its decision inCastle Rock.