Anchoring More than Babies: Children's Rights after Obergefell v. Hodges

Abstract

The Supreme Court’s recent decision upholding a constitutional right to same sex marriage in Obergefell v. Hodges was a huge advance not just for LGBT Americans, but also for children. Obergefell suggests children have a fundamental right to be raised by their parents without being demeaned or marginalized by the state. This has important implications for other vulnerable children, including U.S. citizen children with undocumented parents. This Article argues that deporting these children’s parents contravenes their fundamental right to be raised by a loving parent, to equal protection of the law, and to remain in the United States as U.S. citizens. It explains the important shift in perspective on children’s rights suggested by the Obergefell decision and its implications for children with undocumented parents. It describes the current situation confronting U.S. citizen children whose parents lack legal immigration status and the unconstitutional harm they suffer when their parents are deported. It notes that three important constitutional rights are implicated: children’s substantive due process right to be raised by their parents, their right to equal protection of the laws, and their right under the Privileges and Immunities Clause to live in the United States. Finally, the Article discusses procedures to protect the rights of U.S. citizen children with undocumented parents. It concludes that executive action to prevent the deportation of parents of U.S. citizen children is clearly warranted. Given the fundamental rights of children that are at stake, the Article contends that mechanisms to prevent the deportation of U.S. citizen children’s parents are not only lawful, but perhaps constitutionally required.