From Footnote to Footprint: Obergefell's Call To Reconsider Immigration Law as Family Law

Abstract

This chapter is an engagement with the Obergefell decision to suggest one way in which the decision’s articulation of the citizen’s relationship with the government (or ‘the State,’ as is the preferred nomenclature among some) is quite groundbreaking. American law—and American values—has a mythical and actual embrace of privacy as a valued and near-inviolable right. The belief that American citizens have a zone of privacy, a right to remain free from government intervention, has captured the imagination of both liberals and conservatives when embracing the rights to abortion, family planning, and gun ownership. However, instead of recognizing the harm that the State can have when intruding on a citizen’s fundamental right, Obergefell is predicated upon a recognition that some harms—such as humiliation—are inflicted when the State fails to intervene and recognize a same-sex couple (and their child) as a family. Obergefell’s remarkable anointment of privacy as a guarantor of rights is a major departure from the position widely accepted before 2000, and this chapter asks how this newly minted right—or “Obergefell’s sword” as phrased by Justice Roberts—might be applied to families in which some members are U.S. citizens and some are not.