The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Sunday, nearly 2/3 of voters in Switzerland approved a referendum to approve same-sex marriage. Also on Sunday, more than 3/4 of voters in San Marino approved a referendum to legalize first-trimester abortions.
Imagine that. Change occurred through the democratic process, and not the judicial process.
But wait! Didn't Obergefell–favorably citing West Virginia v. Barnett–hold that "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." Of course, the passage from Justice Jackson's landmark opinion focused on enumerated provisions in the Bill of Rights, and not unenumerated substantive due process rights. Indeed, Justice Jackson explained that "[m]uch of the vagueness of the due process clause disappears when the specific prohibitions of the First [Amendment] become its standard." But details were not important for Justice Kennedy. His obligation was to "define the liberty of all."