Thursday, August 13, 2015

Substantive Due Process for Noncitizens: Lessons from Obergefell by Anthony O'Rourke


Substantive Due Process for Noncitizens: Lessons from Obergefell by Anthony O. RourkeState University of New York (SUNY), Buffalo, SUNY Buffalo Law School August 3, 2015

ABSTRACT:  The state of Texas denies birth certificates to children born in the United States — and thus citizens under the Fourteenth Amendment — if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Court’s due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This short essay builds upon my earlier analysis by examining United States v. Obergefell’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I argue, can serve to clarify the constitutional harms that result from policies, like those in Texas, that selectively target noncitizens and their children.

Michigan Law Review First Impressions, Forthcoming


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