Abstract
At the same time, a more dynamic method for identifying and protecting unenumerated rights has lacked a normative foundation. That gap has left rights such as same-sex marriage, sexual privacy, and abortion open to the charge that the Court protected them based only on individual justices’ morality. This charge is false. Doctrinally, dynamic due process is constrained by equal protection principles and triggers only rigorous rational basis review. This modest standard leaves majorities free to pursue nearly any interest besides morality standing alone or what courts have called animus.
Recommended Citation
Daniel F. Bousquet,
The Co-Parent Trap,
91 Brook. L. Rev.
1219
(2026).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol91/iss4/3