Substantive equal protection and the definition of marriage

A conventional narrative of constitutional history says that in the late 19th and early 20th centuries, the U.S. Supreme Court commonly used the “due process” clause of the Fifth and 14th amendments to strike down laws, particularly in the economic realm, under a theory of substantive due process.

The 14th Amendment version of the clause provides: “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

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