Do Justice Anthony Kennedy's opinions in the gay rights cases of Romer v. Evans,2 Lawrence v. Texas,3 United States v. Windsor,4 and Obergefell v. Hodges5 have any impact on the future of Fourteenth Amendment jurisprudence beyond rights for gays., lesbians, and transgender persons? We don't know. It is possible these cases will simply remain siloed in their unique legal and cultural niche, but viewing tbem through the lens of 150 years of Fourteenth Amendment jurisprudence suggests they may signaJ a shift in due process and equal protection analysis. This shift couJd open the doors for challenging discriminatory Jaws under a more robust rational basis analysis than that which is generally employed under the traditional tiered-scrutiny structure.
Schiavone, A. L. (2016). Unleashing the Fourteenth Amendment. Wisconsin Law Review Forward, 2016. Retrieved from https://dsc.duq.edu/law-faculty-scholarship/52