Freedom of Marriage: An Analysis of Positive and Negative Rights

Authors

Rachel A. Washburn, Washington University School of Law

Publication Title

Washington University Jurisprudence Review

Abstract

The institution of marriage is deeply embedded in modern society. Within the United States, legal recognition of marriage conveys both social dignity and material benefits to married individuals. As far back as 1967, the Supreme Court has treated freedom of marriage as a Constitutional right necessary to protect personhood rights such as liberty and autonomy. However, it did not fully extend this right to same-sex couples until its 2015 decision in Obergefell v. Hodges.

Justice Scalia criticizes the majority opinion in Obergefell as lacking logic and precision, yet it reconciles jurisprudential discrepancies in prior case law addressing the right of marriage. These discrepancies are rooted in the contrasting negative and positive rights analytics of Immanuel Kant and Georg Willhelm Friedrich Hegel, respectively. Supreme Court precedent instituted a negative right to marriage in Loving v. Virginia, and a positive right to marriage in United States v. Windsor. These decisions are inconsistent under an exclusive negative or positive rights analysis. However, the Obergefell decision establishes Constitutional protection of same-sex marriage by acknowledging correlating positive and negative rights to marriage. This Note analyzes same-sex marriage under negative, positive, and correlating rights analytics. It concludes that the correlating rights analysis in Obergefell achieves optimal freedom by respecting and protecting the personhood rights of same-sex couples.

Recommended Citation

Rachel A. Washburn, Freedom of Marriage: An Analysis of Positive and Negative Rights, 8 Wash. U. Jur. Rev. 087 (2015).
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol8/iss1/4