The Fundamental Right to Marriage Defined Using the Penumbra Theory

Abstract

The right to marriage is often disregarded and underappreciated within both the American legal system and modern society. Still, its roots are undoubtedly buried within developed case law and intertwined with other popular fields of study, such as civil and equal rights, gaining attention in recent times for issues such as same-sex marriage. The Supreme Court of the United States has defined the fundamental right to marriage through multiple cases that were connected and popularized through their main topics of civil and equal rights; however, it was not until the landmark case of Obergefell v. Hodges (2015) that the Court explicitly stated United States citizens held the fundamental right to marriage, as well as describing the judicial principles that justified their decision. This liberty - as are many others developed through case law - is not specifically incorporated within the Constitution of the United States. Many scholars may believe that this is an enumerated right from the Ninth Amendment in the Bill of Rights, which seeks to be an umbrella term for any liberties otherwise not covered in the Constitution. In fact, a famous Supreme Court judge, Oliver Wendell Holmes, would later coin the legal "penumbra theory" in 1873 as a method used for deciding how rights come about from the penumbras (shadows) of the Constitution. While its application may directly be aligned with the ideology behind the Ninth Amendment, this theory's implementation can be utilized towards any written law in order to find the extent that it covers. The penumbras of the Constitution are therefore not solely limited to the Ninth Amendment: the fundamental right to marriage is a primary example of developing from the shadows of the Fourteenth Amendment, as seen in Obergefell. This review uses a qualitative analysis of many landmark Supreme Court decisions regarding matters of privacy, equal rights, and constitutional theory to develop a deeper understanding of the fundamental right to marriage and its limits, as well as its current practices in modern society and the potential future legal outcomes. It is concluded in this review that upon the official definition of the fundamental right to marriage, other rights must now be defined and limited within the penumbras of this newfound freedom.