Although the U.S. Supreme Court reached the correct result in Obergefell v. Hodges, its substantive due process and equal protection analyses were wrong. First, the majority opinion discusses the concept of equal dignity, which has no legal definition nor has it been used in prior Supreme Court jurisprudence. The majority made another mistake in using substantive due process when Obergefell could have been decided on the basis of equal protection alone. Despite these mistakes, there were parts of the opinion the Court did decide correctly. The end result -- that same-sex couples have the right to marry -- was the correct outcome. This is based on the fact that the Supreme Court has defined marriage as a fundamental right and banning marriage to same sex couples would be discrimination on the part of the government. While the majority was also correct in overruling the prior method of defining fundamental rights set forth by Glucksberg, the Court should not have made defining fundamental rights so unlimited in scope. Justice Kennedy removed the prior standard for defining fundamental rights without creating a new standard for judges to follow in the future, leaving the future of substantive due process cases uncertain. This neglect to implement a new standard to replace Glucksberg’s standard leaves substantive due process open to judicial interpretation. The Court also came close, but still neglected, to create a quasi-suspect class on the basis of sexual orientation. The Court should have created standards that were not so overly broad for future decisions regarding substantive due process, and it should have classified sexual orientation as a quasi-suspect class

Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions. This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role in shaping our nation’s laws and destiny: But was it ever intended to? This paper first examines the legal arguments in favor of substantive due process to determine whether the judiciary was designed to be the “bulwark” of natural as well as clearly scribed law. Then, employing a novel framework to measuring judicial politicization, the thesis tracks the doctrine’s application throughout its most prominent case studies. Often arriving at nuanced conclusions, we observe that the truth is more often painted in some gradation of grey than in black or white.

Made available in DSpace on 2016-04-26T20:21:39Z (GMT). No. of bitstreams: 1 Paulo Friedrich Wilhelm Lowenthal.pdf: 800567 bytes, checksum: 13e41dd30e8aca2753610f3d62d4aa53 (MD5) Previous issue date: 2013-05-14 / This paper discusses the constitutional guarantee of due process of law, with emphasis on its substantive dimension. It investigates the applicability of substantive due process within the scope of the Brazilian legal order based on precedents of the Supreme Federal Court, in addition to analyzing the origins and development of the constitutional doctrine of substantive due process in its cradle, meaning the precedents of the U.S. Supreme Court. As an interpretation instrument, identifying and understanding the interpretive phases related to the principle of substantive due process and its dimensions under U.S. Law adds breadth to the study and understanding of the substantive due process doctrine within the scope of the Brazilian legal order / O presente trabalho trata da garantia do devido processo legal, com ênfase na sua dimensão substancial. Empreende uma investigação acerca das origens e do desenvolvimento do devido processo legal substancial, enfocando o ambiente em que o mesmo apresentou seu desenvolvimento mais fecundo: a jurisprudência da Suprema Corte norte-americana. A partir da identificação das diversas fases interpretativas que o princípio do devido processo legal substancial assumiu no direito estrangeiro, a sua compreensão é enriquecida, possibilitando, ao intérprete, uma utilização mais consistente e consciente desse importante ferramental hermenêutico. Objetiva verificar a aplicabilidade, em nosso ordenamento jurídico, do devido processo legal substancial, utilizandose, para tanto, o exame da jurisprudência do Supremo Tribunal Federal