ohio state moritzI ran across an interesting law review article from Susan Frelich Appleton out of Ohio State University’s Moritz College of Law called Obergefell’s Liberties: All in the Family. The article joins the debate about whether the Obergefell case only protects liberty against the interference by the state regarding the right to marry (public liberty) or whether it can also compel the affirmative support or government action (private liberty). The article also explores the theoretical relationship between constitutional law and family law that the US Supreme Court’s liberty rulings have forged. Much of the article is an analysis and high level theoretical breakdown of the Obergefell opinion and cases relied upon by the Court for its opinion.

The conclusion of the article bears consideration in pointing out that the fear of many scholars in the wake of Obergefell was that there would be a trend toward “glorification of marriage” to the marginalization of other forms of family and relationships, inviting discrimination against nonmarital relationships. The author points out that decisions in Illinois and Michigan support this fear. However, to the contrary, it seems there is another scenario actually emerging where the expansion of the right to marry serves as a template for other relationships that could have private support obligations attached.

Constitutional protection of the relationship between nonmarital fathers and their children, once vulnerable (or even unacknowledged) under the “old illegitimacy,” shows how such expansion can occur and how such developments can facilitate neoliberal objectives. A more recent illustration can be found in some state courts that have extended parental status, including support duties, to partners of parents in the absence of biological, marital, or adoptive ties and have recognized both the financial and constitutional considerations at work in such situations. If this trajectory continues, those who have pushed for affirmative legal recognition of polygamy, of friendship, and of other intimate connections that could supply new private obligations just might succeed in their efforts.

The author questions whether society should pursue this bath in expanding the legal notion of family to provide expanding duties of support between nonmarried people, but acknowledges the conversation.