The Unwritten Rights Issue
The Supreme Court’s abortion ruling cast a shadow over many liberties Americans take for granted. This is what those rights — everything from learning a foreign language to same-sex marriage — mean to everyday people.
How does a right come to be? A vast number of the rights Americans take for granted aren’t protected by legislation, and they aren’t mentioned in the Constitution. Instead, they have been read into our legal tradition by Supreme Court rulings.
Many of these so-called unwritten rights are, through a few quirks of judicial history, recognized via a legal doctrine called substantive due process. They protect interracial and same-sex marriages, foreign-language education, contraception, an extended family’s decision to share a home, and more. Until June, abortion was one of those rights. But with Dobbs v. Jackson Women’s Health Organization, the Supreme Court removed abortion from this list. And in his concurring opinion, Justice Clarence Thomas renewed an old argument when he suggested that all the rights contained under substantive due process ought to be reconsidered.
The Dobbs majority insisted their ruling did not call into question other unwritten rights, and legal experts say Thomas’s sweeping vision is unlikely to come to pass. But the decision nevertheless inspired panic among groups of Americans that had found few other protections under federal law. And it signaled a narrowing in what new rights the court may consider protecting in the future.
In this special issue, The Washington Post Magazine has sought to make human an otherwise complex area of law. In an introductory essay, New York University law professor Kenji Yoshino — who advised us on this project — explains how the legal framework of substantive due process came about and its possible future after Dobbs. The stories that follow illustrate the impact on people, families and communities of the major unwritten rights that the Supreme Court has, over the past century, recognized under substantive due process.
Of course, liberals and conservatives disagree about how the court should use this power, whether these rights are better left to legislation, and even whether some of them should exist at all. But whatever your view on these issues, one thing is undeniable: These unwritten rights shape the way Americans conduct their lives every day.
— Steven Johnson and Whitney Joiner, co-editors, The Unwritten Rights Issue
— Richard Just, editor, The Washington Post Magazine
While the Supreme Court has long agreed that unenumerated rights exist and should mostly be protected under its substantive due process jurisprudence, the agreement ends there. The hottest area of controversy — which has now become incandescent with the Dobbs ruling — concerns the question of how the court discerns which unenumerated rights it will protect. Two major factions have emerged in this battle royal: the backward-looking camp and the forward-looking camp.
— Kenji Yoshino, professor, New York University School of Law
A more personal triumph for me is seeing how dual-language education affects students’ present lives. The most impactful memory I carry is the deep gratitude a grandmother once shared at an end-of-year celebration. She thanked me for giving her 7-year-old grandson the ability to communicate with her. It was, she said, the first time that she was able to get to know her grandson.
My child attends an independent school because it fosters critical thinking, open dialogue and an introduction to peers of a range of backgrounds. It’s an enormous freedom knowing that I get to determine what my student learns and how. When curriculum changes according to the whims of election cycles, we’re in serious trouble.
From Texas to South Carolina to California to Illinois, students on at least a dozen campuses have built ad hoc fulfillment centers to provide Plan B to their peers, circumventing both pharmacies and traditional student health centers. In the process, as access to other reproductive services has been rolled back nationwide, the peer-to-peer distribution networks — part of a loose national federation — have modeled a radical approach to care in an era in desperate need of new tactics.
The couple depicted here are my grandparents, Edward O’Brien and Estela Marquetti, surrounded by the six children they raised. They met in 1958 at a Mass near Johns Hopkins University in Baltimore, where Edward was completing his PhD in mechanical engineering. They bonded over a shared Catholic faith and sense of humor. He was White and from Australia. She was Black and Cuban.
Because they lived in Maryland, a state that banned interracial marriage, they had to travel to Washington, D.C., to marry, which they did the day after Christmas in 1959. They drove back to Baltimore that night. Their first child, my mother, was born in Baltimore in September 1960. As she tells it, her parents never feared arrest but were harassed and spit on in their city.
My grandparents told their children and grandchildren that the American Civil Liberties Union contacted them to ask if they would be willing to test Maryland’s ban. Both were visible activists. This was seven years before the Supreme Court struck down state bans on interracial marriage in Loving v. Virginia. Edward declined: He was busy working on his PhD and worried that if they did take on the case, they’d never be able to start the big family of their dreams.
In 1961 Edward, Estela and my mother moved to Long Island. New York had no state anti-miscegenation laws, but they had trouble getting a home until a sympathetic local man was willing to sell them land. Edward became a professor at Stony Brook University.
Edward and Estela died in 2019, 40 days apart. They are survived by their six children and 21 grandchildren. Their marriage lasted 60 years.
— Antonia Hylton, correspondent, NBC News
I had to figure out a way to get to my parents in Colorado because I knew it was safe there to get an abortion. I had absolutely no money. He was in control of all the money. All the thoughts about how I could give myself an abortion started, and I was like, I can’t do that to myself. Like, I’ll probably really hurt myself. I was so, so nervous. I was full of anxiety.
Recently, the Nams opened their house and their lives to me so I could observe one family that had embraced multigenerational living. During a few visits over two weeks, it became clear to me that the arrangement is a gift for every member of the household. And yet, some zoning ordinances have targeted these kinds of living arrangements. In fact, if not for a decades-old Supreme Court decision, the Nams’ multigenerational household might have been illegal.
Ben Griffith rose before the sun the morning of March 18, 2022, packed his car and began the long drive from his house in Frankfort, Ky., to suburban Kansas City, Mo. The time had come to help his father die. Months earlier, when John Griffith made clear to his three sons that he would end his life by denying himself food and drink rather than go into an assisted-living facility, his two older sons objected. Only Ben, the youngest at 67, agreed to keep vigil with his 99-year-old father.
Making illegal our intimate lives seems like an absolute total disregard for — I don’t want to say personal choice because it’s not a choice who you love. It hurts so emotionally. Whether you get a sideways glance at a restaurant or when you’re at a concert, walking hand in hand and if you’re threatened with something like arrest — I can’t imagine any straight couple even being able to imagine what that feels like. We come out every day of our lives. Every day there is a risk. But the kind of risk you’re talking about, about our love being illegal, is visceral.
Were the right to same-sex marriage ever to disappear, the greatest loss to us would be one word: “husband.”