Alexis M. Piazza∞

In Obergefell, the Supreme Court held, in a majority opinion authored by Justice Kennedy, that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”20 Commentators have recognized the case not only as “an important landmark,”21 but also as a “game changer for substantive due process jurisprudence.”22

Obergefell is significant to advocates of a fundamental right to education for four principal reasons. First, Obergefell rejects the strictures of Washington v. Glucksberg, which generally inhibits the judicial recognition of fundamental rights. Second, Obergefell replaces Glucksberg with a more flexible approach to recognizing fundamental rights. Third, Obergefell winds together principles of substantive due process and equality. Finally, Obergefell moves past the positive/negative rights distinction that has been used against advocates of the fundamental right to education.

Obergefell is significant first because it rejects the formulaic role for tradition and history associated with Washington v. Glucksberg.23 In Glucksberg, the Court considered whether the state of Washington’s law banning physician-assisted suicide violated Due Process.24 The Court applied a mechanistic two-step inquiry to conclude that it did not.25

In the first step, the Court developed a “careful description” of the right at issue.26 Applying this specificity requirement, the Glucksberg Court rejected open-ended descriptions of the right at issue, such as the “liberty to choose how to die,” or the “right to choose a humane, dignified death,”27 in favor of the right “to commit suicide which itself includes a right to assistance in doing so.”28

In the second step, the Court asked whether the carefully described right was “‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”29 These requirements were conjunctive under Glucksberg, making the tradition inquiry unavoidable.30 After narrowly describing the right at stake in step one, the Glucksberg Court found a “consistent and almost universal tradition” that had long rejected that right.31

Obergefell plainly rejects both of Glucksberg’s two steps. Justice Kennedycriticized the “careful description” requirement, deeming it “inconsistent” with the approach the Court had used in discussing other fundamental rights.32 Accordingly, rather than evaluating a “right to same-sex marriage,” Justice Kennedy instead focused on the more general “right to marry in its comprehensive sense.”33 In the words of Chief Justice Roberts in his dissent, the majority “jettison[ed] the ‘careful’ approach” under Glucksberg.34

The Obergefell Court also articulated a flexible approach to tradition that is fundamentally at odds with Glucksberg’s second step. Although both cases start with history,35 Obergefell recognizes that “rights come not from ancient sources alone”36 and that “[h]istory and tradition guide and discipline this inquiry but do not set its outer boundaries.”37 Flexibly drawing on various historical sources and authorities, Justice Kennedy distilled four principles underlying why marriage is fundamental, as discussed further below.38

Though Obergefell did not expressly overrule Glucksberg, there is little doubt that it rests on fragile ground. Chief Justice Roberts’s dissent asserts that the majority “effectively overrule[d]” Glucksberg.39 Commentators agree.40 For example, Kenji Yoshino argues “it will be much harder to invoke Glucksberg as binding precedent” in the future and predicts the Court may be “taking the familiar step of isolating a precedent before overruling it altogether.”41 Similarly, Richard Myers predicts the Court will eventually overrule Glucksberg’s specific holding and invalidate laws banning assisted suicide. 42

In short, for advocates of greater constitutional rights, Glucksberg is unlikely to stand in the way.43

Obergefell is also significant because of the mode of analysis it applied to replace Glucksberg. Rather than defining a right and then mechanically deciding whether that right was “deeply rooted” in the nation’s history under Glucksberg, Justice Kennedy invoked Justice Harlan’s famous dissent in Poe v. Ullman to emphasize that the Court’s inquiry should not be “reduced to any formula.”44

In Poe, the Court was asked to consider the constitutionality, under the Fourteenth Amendment, of a Connecticut law prohibiting the use of contraceptive devices and the provision of medical advice regarding such devices.45 The Court avoided the merits question, as five justices agreed the case was non-justiciable.46 In a lengthy dissent, Justice Harlan disagreed that the issue was non-justiciable, addressed the merits question, and concluded that Connecticut’s law violated the Due Process Clause.47 In so concluding, Justice Harlan wrote that “[d]ue process has not been reduced to any formula; its content cannot be determined by reference to any code.”48 Instead, through the course of the Court’s decisions the doctrine strikes a balance “between . . . liberty and the demands of an organized society.”49 As Harlan wrote:

The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. 50

Justice Harlan’s approach conveys a “common law spirit” and has several features.51 The approach treats the Constitution as a “basic charter” of our society,52 a phrase that Justice Kennedy uses twice in Obergefell,53 and interprets the broad language of the Constitution as giving license to adaptation.54 As Justice Kennedy writes, the interpretative process of deciphering a new fundamental right is “guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements.”55 Although that process is grounded in history and reason, it is an ongoing one: “Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed.”56 That process can also change course:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.57

This process thus allows the Court to identify previously-unrecognized rights.58 So it is without any note of irony that Justice Kennedy, in an opinion upholding the right to same-sex marriage, favorably cites Justice Harlan’s Poe dissent, which distinguished the constitutional right to contraceptives—what Harlan considered an essential feature of marriage—from the right to be free from punishment for gay conduct.59

Applying the common law approach from Poe, Justice Kennedy examines the Court’s precedents and identifies four “principles and traditions” that suggest that “the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”60 First, marriage enables individual autonomy.61 Second, the right to marry uniquely supports a two-person union, an exceptional and intimate association that impacts basic human relationships.62 Third, marriage safeguards children and families, and so draws from related rights of childrearing, procreation, and education.63 Fourth, marriage is a “keystone of our social order.”64 Based on these principles, the Court concluded that the right to marry is fundamental, inherent in the liberty of the person, and a right that could no longer be denied to same-sex couples.65

Not only did Obergefell dispose of the strictures of Glucksberg, but it also offered a vision for interpreting “liberty” that pulls together notions separately associated with the Due Process and the Equal Protection Clauses. On the one hand, the right to marry considered in Obergefell is a universal one, part of any individual’s right to liberty. On the other, the Court extends that right to same-sex couples, in part, due to the “stigma,”66 “disrespect,” and “subordinat[ion]”67 suffered by that group under the laws at issue. As Justice Kennedy writes:

The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.68

Though the Court selected Due Process as the grounds for its decision,69 it also recognized the Equal Protection Clause as independently supporting its conclusion.70 In the words of Laurence Tribe, “Obergefell’s chief jurisprudential achievement is to have tightly wound the double helix of Due Process and Equal Protection,”71 fusing together these independent constitutional principles.

Commentators have developed different names for this fusion. Yoshino calls it “antisubordination liberty,” emphasizing the anti-caste theme of cases like Obergefell and Lawrence, and citing the Court’s language in VMI that “the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.”72 In contrast, Tribe calls this fusion “equal dignity,” which embraces an anti-caste theme but provides an “even more capacious frame for evaluating future fundamental rights claims” under the dignity heading.73 Name notwithstanding, this fusion aligns with Pamela Karlan’s observation, made years before Obergefell, regarding the overlapping effect of due process and equal protection.74 As she explains, “sometimes looking at an issue stereoscopically—through the lenses of both the due process clause and the equal protection clause—can have synergistic effects, producing results that neither clause might reach by itself.”75 Obergefell finally identifies “[t]he synergy between the two protections.”76

Obergefell may prove to be just as important for its recognition of a positive right. The right to marriage is not merely a right to be free from government action, but also an entitlement to compel a specific government action: the recognition of a marriage along with all of the legal benefits and burdens that flow from that recognition. This right differs in kind from those recognized in several of the privacy cases upon which the Court in Obergefell relied, such as Griswold v. Connecticut, Eisenstadt v. Baird, and Lawrence.77 Each of those cases involved state prohibitions—forbidding the use of contraceptives, the distribution of contraceptives, or “homosexual conduct,” respectively—for which claimants asked only that the government get out of the way.78 But in Obergefell, the Court went a step further, requiring the government to take affirmative steps to protect the liberty of same-sex couples by recognizing their marriage.79

The Obergefell dissents emphasize the significance of the Court’s recognition of a positive right.80 Chief Justice Roberts argues that the privacy cases are not relevant because “petitioners do not seek privacy” but instead “seek public recognition of their relationships, along with corresponding government benefits.”81 As he explains, “[o]ur cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.”82 Justice Thomas, in a separate dissent, similarly argues that the Framers’ understanding was that liberty embraces only freedom from government action.83 “In the American legal tradition,” Justice Thomas writes, “liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”84

In response, Justice Kennedy explains that a notion of liberty that was so cramped as to protect only “negative” liberties would not fulfill the Constitution’s promise: “[W]hile Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”85 Thus, whether a right is construed as “positive,” “negative,” or some mixture of the two was not dispositive.

Each of these developments is critical to the right to education. Below, I explain why and address each development in turn.

Though the Supreme Court has not considered the right to education since Glucksberg, that case clearly created a formidable obstacle.

Initially, since long before Glucksberg, proponents for a constitutional right to education have had to overcome San Antonio Ind. Sch. Dist. v. Rodriguez, the Court’s 1973 decision declining to recognize education as a fundamental right.86 Rodriguez did not articulate a helpful test to determine whether a right is fundamental, vaguely explaining that “the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.”87 The Court did emphasize that “the importance of a service performed by the State does not determine whether it must be regarded as fundamental.”88 The Court also contrasted the right to interstate travel, which had long been recognized as a constitutional right, with the right to education, which had not.89

Rodriguez did not definitively settle the question of whether education is a fundamental right,90 but education advocates have had a harder time asserting such a right since Glucksberg. That is because the right to education may not be “deeply rooted in this Nation’s history and tradition” in the same way as other recognized rights, an observation underlying the Court’s decision in Rodriguez.91

Advocates have certainly tried to argue that the right to education survives Glucksberg. Many emphasize the tradition and history of public education in the United States,92 citing the compulsory education laws widespread across the country since the nineteenth century.93 Others note that, at the time of the Fourteenth Amendment’s passage, nearly every state in the Union imposed a constitutional duty on state governments to provide a public-school education.94 Still others have tried to ignore Glucksberg’s strictures, focusing instead on broad dicta from Glucksberg that supports an evolving due process doctrine.95 Finally, many have sought to avoid Glucksberg altogether, seeking some other constitutional basis for a right to education.96

After Obergefell, education advocates need neither satisfy nor circumvent Glucksberg. Instead, as discussed next, advocates can rely on the “reasoned judgment” approach to assert the recognition of a right to education.

Just as Obergefell identified four principles and traditions that support recognizing marriage as a fundamental right, application of a similar analysis would find principles that support recognizing education as a fundamental right as well. Nothing from Obergefell suggests the principles must be the same.97 Nonetheless, as explained further below, some of those principles that support a right to education mirror those that support the right to marriage, while others are distinct from the principles Obergefell identified. My purpose here is to outline the general contours of principles relevant to the right to education, and flag cases relevant to each principle, while acknowledging that other articles will more thoroughly address these principles.

First, education preserves the autonomy of children and parents. The Court recognized as much in two early cases, Meyer v. Nebraska98 and Pierce v. Society of Sisters.99 In Meyer, the Court reversed a school teacher’s conviction under a state law that prohibited him from teaching German to his students. Recognizing the “supreme importance” of education, the Court explained that the liberty protected by the Due Process Clause must include a person’s right to “establish a home and bring up children” and to “acquire useful knowledge.”100 Two years later, the Pierce Court similarly struck a state law that required parents to send their children to public schools, finding that the law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.”101 The Court wrote of a “fundamental theory of liberty,” which “excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.”102 Together, these cases not only form the doctrinal foundation for a constitutional right to education,103 but they emphasize the basic autonomy that right supports.

Second, education helps fulfill the Constitution’s anti-caste promise. Again, two cases provide the most forceful support. In Brown v. Board of Education, the Court famously held that education must be made available to all on equal terms regardless of race and that separate educations were “inherently unequal.”104 Writing for a unanimous Court, Chief Justice Warren criticized the “separate but equal” system for causing black students to have “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”105 Similarly, in Plyler v. Doe, the Court declared unconstitutional a Texas law that effectively excluded undocumented immigrants from the state’s public schools.106 The Court found the state law “raise[d] the specter of a permanent caste of undocumented resident aliens” and that the “existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”107 Taken together, Brown and Plyler strongly support the principle that education is necessary to fulfill the Constitution’s anti-caste promise.

Third, education is necessary to protect other fundamental rights. Remarkably, this argument is made possible by Rodriguez, which assumed for the sake of argument108 that some quantum of education could be constitutionally protected as preservative of the right to speech and the right to vote.109 The Court’s assumption was so significant that one commentator even dubbed the Court’s dicta the “unheld holding” of Rodriguez.110 Recognizing the point three years later, in Papasan v. Allain the Court acknowledged that Rodriguez had “not yet definitively settled the question[] whether a minimally adequate education is a fundamental right.”111

Finally, education is a keystone of our social order. The Court’s prior decisions over the last century are rife with language recognizing the exceptional importance of education. Nearly one hundred years ago, the Court recognized in Meyer that the “American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance.”112 In Brown, the Court deemed education as “perhaps the most important function of state and local governments” and questioned whether “any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”113 Similarly, in Plyler, the Court concluded that “education has a fundamental role in maintaining the fabric of our society.”114 Even Rodriguez recognized an “abiding respect for the vital role of education in a free society” and accepted the lower court’s conclusion that “the grave significance of education both to the individual and to our society” cannot be doubted.115 Looking at these cases, there is no doubt that education is not just “some governmental ‘benefit,’”116but instead a keystone of our social order.

Thus, applying the “reasoned judgment” approach to education could distill principles that support recognizing education as fundamental.

The right to education fits perfectly within Obergefell’s liberty-equality framework.117 An adequate education facilitates the exercise of liberty, because it provides children with greater autonomy and life choices, and prepares citizens to participate effectively and intelligently in our open political system.118 Education is also closely tied to the Constitution’s promise of equality, because it enables all students, regardless of race or immigration status, to compete in an increasingly globalized and competitive society.119 In addition, the right to education can draw directly from Supreme Court cases applying the Due Process Clause, such as Meyer and Pierce, and the Equal Protection Clause, such as Brown and Plyler.

Thus, Obergefell’s synthesis of liberty and equality invites greater recognition of the right to education.

As many scholars have recognized, perhaps the greatest obstacle to the right to education has been the belief that the Constitution protects negative but not positive rights.120 The Court emphasized this point in Rodriguez, finding a “critical distinction” between the right to education asserted in that case and the right from government “‘depriv[ation],’ ‘infringe[ment],’ or ‘interfere[nce]’” previously recognized in other cases.121

Numerous scholars have considered whether Obergefell’s recognition of a positive right can be confined to the realm of marriage and intimacy. Kenji Yoshino, for example, noting the dual nature of marriage as both a positive and negative right, suggests Obergefell may represent a “one-off” regarding the positive-negative divide because the marriage right itself spans this divide.122 Then again, he emphasizes, “Justice Kennedy’s opinion contains no such qualification.”123 Other scholars are more pessimistic. Gregg Strauss, for example, describes marriage as a “power right,” which a person should be able to exercise without state interference and is unlike the right to education.124

Like the right to marriage, the right to education defies simple characterization; as the Supreme Court has recognized, education is not just “some governmental ‘benefit.’”125 First, education is unique in that “[i]t is the only institution for which the government compels attendance of all of its citizens.”126 In that respect, education may be a sui generis positive right. Second, the right to education may be unique in its ability to draw on myriad constitutional sources. As one illustration, Susan Bitensky persuasively argues how an unremunerated positive right to education can arise “from the Free Speech Clause of the First Amendment, the Due Process Clause and the Privileges or Immunities Clause of the Fourteenth Amendment, and, indirectly, from the Constitution’s references to elections and voting.”127 Indeed, the Supreme Court in Rodriguez assumed some quantum of education could be preservative of the right to speech and the right to vote.128 Finally, education may be construed as a negative liberty rather than a positive right. Areto Imoukhuede makes this argument, citing the liberty that President Lyndon B. Johnson famously referred to as “the freedom from ignorance.”129

The point here is not that the right to education is equivalent to the right to marriage; rather, there may be ways in which education, like marriage, defies the clean positive-negative distinction for which the dissenters in Obergefell argued. As the above discussion suggests, Obergefell presents an opportunity for education advocates to assert that education is fundamental, even though it may be construed as a “positive” right.

Obergefell presents advocates of a federal right to education with a new opportunity.130 Not only did the Obergefell Court dispose of the restrictive features of the implied fundamental rights analysis from Glucksberg, but it also fully endorsed Justice Harlan’s common law approach from Poe as an alternative. Using that approach, advocates can point to at least four principles underlying the Court’s prior decisions on education to explain why education is fundamental. Additionally, as with marriage, the right to education implicates both liberty and equality, and may bridge the positive-negative rights divide. Thus, Obergefell presents several opportunities for educational advocates to argue that every child has a fundamental right to education under the U.S. Constitution.131