Rethinking the Fundamentals: Applying The Evolving Standards of Decency Test To The Court’s Evaluation of Fundamental Rights.

In 1910, the Supreme Court recognized in Weems v. United States that a constitution “must be capable of wider application than the mischief which gave it birth.” This principle led to the creation of the Court’s two-pronged “evolving standards of decency,” test: (1) evidence of an objective indicia of a national consensus, and (2) the reviewing court’s own independent judgment. To this day the Court has yet to apply this test outside of the Eighth Amendment context. But can the “evolving standards of decency,” test identify and protect other fundamental rights? This Article explores how the Court could apply the “evolving standards of decency” test to determine fundamental rights under the Fourteenth Amendment’s Due Process Clause and provide more robust constitutional protections for LGBTQ+ rights. Specifically, it applies the test to Lawrence v. Texas and Obergefell v. Hodges to show how it would distinguish and affirm the respective protections found in those cases. This new application would not change the Court’s current “history and tradition” test for fundamental rights, but rather it reimagines how to view history and tradition when we seek to determine which rights are fundamental in contemporary society. As the Court continues to restrict substantive due process rights—and explicitly put the rights discussed in Lawrence and Obergefell at risk—the “evolving standards of decency,” test offers advocates a new approach to protect marginalized communities within this narrow framework.