Equal protection doctrine may supply at least a partial answer to whether the constitution protects unenumerated rights when the Glucksburg test falls short. Rights enjoyed by the majority are in peril less often in a democracy because the ballot box supplies the response to infringements. Minorities cannot protect themselves in the same way. Equal protection fills in the gap. Straight people have a right to marry? Well then so do gay people.
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Originalism and Equal Protection
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Equal protection doctrine may supply at least a partial answer to whether the constitution protects unenumerated rights when the Glucksburg test falls short. Rights enjoyed by the majority are in peril less often in a democracy because the ballot box supplies the response to infringements. Minorities cannot protect themselves in the same way. Equal protection fills in the gap. Straight people have a right to marry? Well then so do gay people.