Document Type

Article

Publication Date

2016

Abstract

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.” -- Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015)(emphasis added)

The Supreme Court described a troubling “discord between the Constitution’s central protections and a received legal stricture” in its 2015 decision in Obergefell v. Hodges. Its decision in Obergefell resolved that discord in the context of the right to same-sex marriage. Unfortunately, that same discord remains in the context of marriages and other intimate relationships fraught with domestic violence because police protection for victims in these relationships is still not recognized as a due process interest. The Supreme Court faced this issue in its 2005 decision Town of Castle Rock v. Gonzales, but it declined to recognize due process property rights for domestic violence victims based on police inaction. The right to police protection, as Justice Kennedy explains in Obergefell, is a right inextricably linked with the other fundamental rights protected by the Due Process Clause of the Fourteenth Amendment. Freedom from domestic violence is a fundamental human right, and the Supreme Court should recognize it as an aspect of due process liberty, just as it does the right to marry. The due process analysis in Obergefell enables the Supreme Court to overturn its decision in Castle Rock.