Substantive Due Process for Noncitizens: Lessons from <em>Obergefell</em>

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 Supreme Court’s substantive due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This Essay builds on my earlier analysis by examining United States v. Obergefell’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.