W(h)ither Glucksberg?

This article is a tale of two significant United States Supreme Court decisions interpreting and applying the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Washington v. Glucksberg, the Court held that an asserted right to physician-assisted suicide is not a fundamental liberty interest protected by the clause because it is not a right deeply rooted in this nation's history and tradition. More recently, in Obergefell v. Hodges, the Court held that state laws prohibiting same-sex marriage violated the Due Process Clause. In so holding, the Obergefell Court departed from Glucksberg’s history-and-tradition analysis and instead applied an evolving, generational approach in deciding the substantive due process issue before it.

Dissenting in Obergefell, Chief Justice John G. Roberts, Jr. argued that the majority had effectively overruled Glucksberg. A different view was expressed in a 2017 speech by then-Judge and now-Justice Brett M. Kavanaugh in which he argued that Glucksberg stands today as an important precedent insuring that the Court operates as a court of law and not as an institution of social policy. This article examines these differing views and several post-Obergefell decisions shedding helpful but not dispositive light on this important aspect of substantive due process jurisprudence and doctrine. As concluded herein, and contrary to declarations and predictions of its demise, Glucksberg was not overruled, effectively or otherwise, by Obergefell.