Substantive Due Process for Noncitizens: Lessons from Obergefell

Authors

Anthony O'Rourke, University at Buffalo School of LawFollow

Document Type

Article

Publication Date

2015

Rights

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 Obergefell v. Hodge’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.

Publication Title

Michigan Law Review: First Impressions

First Page

9

Last Page

20

Recommended Citation

Anthony O'Rourke, Substantive Due Process for Noncitizens: Lessons from Obergefell, 114 Mich. L. Rev. First Impressions 9 (2015).
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/441