Below is the presentation that I delivered for the panel on Obergefell v. Hodges hosted by the Christian Legal Society on July 1st in Chicago. I had intended to post this last week but neglected to do so. I previously posted the second part of the presentation concerning the challenges to religious liberty that Obergefell will likely pose here.
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Thank you very much for inviting me to be here and participate on this panel, this initial exposition of the Obergefell opinion, an opinion that will, undoubtedly, be the subject of many books and symposia, and countless law review articles in the years to come. In my remarks I plan to offer a brief overview of the holding of the case followed by four observations that directly concern the opinion’s reasoning and methodology.
Briefly put, in Obergefell, the Court held that “same-sex couples may now exercise the fundamental right to marry” (Slip Op. at 22; id. at 12) and that this result is compelled by the Fourteenth Amendment to the Constitution. Justice Kennedy, the author of the opinion, reached this result by redefining what marriage is, contrary to the definition adopted by the majority of states, and until 1993 uniformly the law of the land in all fifty states. For those who oppose this result – this redefinition of marriage now enshrined in our Constitution – it is hard to imagine how Obergefell could have been any worse given that the Court’s holding ostensibly stands upon the twin rationales of substantive due process and equal protection.
Perhaps the opinion would have been even worse had Kennedy engaged in the same vitriol found in the same-sex marriage decisions of state and lower federal courts disparaging the views of defenders of traditional marriage as “irrational” and full of “animus” for gays and lesbians. Indeed, compared with Kennedy’s own opinion in U.S. v. Windsor, striking down the federal Defense of Marriage Act, Obergefell is downright restrained. In Windsor Kennedy described the law in question as “designed to injure” same-sex couples, “a bare congressional desire to harm a politically unpopular group,” a law designed to “impose a disadvantage . . . and so a stigma” on same-sex couples, to “degrade or demean” them. That language is largely absent in Obergefell. While Obergefell does say that laws defining marriage as a relationship between one man and one woman have the effect of “demean[ing] or stigmatiz[ing]” gays and lesbians through exclusion (p. 19), the opinion does not directly attribute a desire harm gays and lesbians to supporters of traditional marriage. Indeed, Kennedy says that the traditional view of marriage is held “in good faith by reasonable and sincere people” (p. 4) and that neither such people “nor their beliefs are disparaged here” (p. 19). Chief Justice Roberts rightfully doubts whether Kennedy’s description of marriage laws can be squared with Kennedy’s intention not to accuse proponents of traditional marriage of animus towards gays and lesbians (p. 28). Still, in this one minor respect, the majority opinion could have been worse. At the same time, nothing prevents the proponents of Obergefell from accusing its opponents of hate and irrationality – something already witnessed in the last few days.
(1) The first observation I wish to offer about Obergefell is how un-law-like it is. Indeed, Obergefell reads not so much like a judicial opinion – setting forth what the law provides and how this law connects to the facts of the case – as it does a discourse about how the world ought to be – a discourse that at times sounds as if it was lifted from the pages of a psychological journal or tract on self-fulfillment, or as Justice Scalia says with some disdain in dissent, a “fortune cookie” (p. 8, n. 22). Perhaps the opinion would have been worse if the majority had actually made more of an attempt to craft a legal opinion, because then it would be more plausible for its supporters to defend the decision as a legitimate exercise of the Court’s authority – of what Chief Justice Marshall described in Marbury v. Madison as “the province and duty” of the Court “to say what the law is.”
But the opinion doesn’t read that way. Rather, as Scalia remarks, Obergefell is “an opinion lacking even a thin veneer of law” (p. 4). Unlike other equal protection and substantive due process cases the Court doesn’t wrestle with the question of the appropriate level of scrutiny to apply and why. Although Kennedy purports to ground the majority’s conclusion in the Equal Protection Clause, he eschews traditional equal protection clause analysis. He does not define gays and lesbians as a “suspect class” such that laws singling out such a class are subject to “strict scrutiny” (although the federal government argued for the adoption of such a position in the case). Nor does Kennedy say whether either “intermediate scrutiny” or “rational basis” review applies to the case at hand. In ignoring the legal framework of the Court’s own construction, the opinion reads less like an example of judicial reasoning and more like an exercise in normative discourse untethered to law.
With respect to substantive due process, the opinion avoids even the use of the term “substantive due process,” opting instead for the more innocuous sounding expression “fundamental rights.” But make no mistake – the bulk of the Court’s decision is founded on substantive due process, not the extension of an already existent fundamental right, but the invention of a right – the redefinition of marriage – so that it extends to same-sex couples. This is the Court majority functioning as a super-legislature composed of nine unelected lawmakers, not constrained by tradition or history, but only their own “reasoned judgment” (p. 10). This is the latest and most dramatic example of what Raoul Berger termed “government by judiciary.”
I confess that in reading the opinion what first came to mind was John Hart Ely’s famous criticism of Roe v. Wade -- that Roe was not bad constitutional law “because it is not constitutional law and gives almost no sense of an obligation to try to be.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 947 (1973). Roe was instead an invention conjured by Justice Blackmun. Justice Kennedy has authored a similar creation – one that, like Roe has virtually no connection to the text, structure, or history of the Constitution, and only the most tenuous connection to the Court’s precedents concerning marriage (about which I will have more to say in a moment). Indeed, the connection between the holding in Obergefell and the text of the Constitution is so weak that Kennedy’s “argument” from text proceeds by way of proxy – with Kennedy substituting the word “dignity” for that of “liberty.” Thus, reading the opinion brings to mind Justice White’s indictment of Roe as “an exercise of raw judicial power,” Doe v. Bolton, 410 U.S. at 222.
(2) Second, with respect to the methodology employed, the Obergefell court overtly rejected the cautious approach to substantive due process set forth by the Court in Washington v. Glucksberg. In Glucksberg the Court held that “liberty” under the Due Process Clause should be understood to protect only those rights “deeply rooted in the Nation’s history and tradition.” In rejecting this approach Kennedy frees substantive due process from any constraining principle. It cannot be tamed – or will be tamed only by the fiat of those who wield the power in question.
Given its conclusion, the opinion cannot help but be a-historical, a point that Alito underscores in dissent (p. 3). Indeed, the majority opinion gives no pretense to being firmly rooted in the history and traditions of the nation. It acknowledges history – without exploring it in any great detail, let alone discerning its meaning – only in order to dismiss it. This dismissal is not overt as this would undermine the legitimacy of the opinion – but it does so in substance.
Thus, after briefly recounting the history of marriage and its central role in civilization the Court tips its hand that it will not be confined by history: “That history is the beginning of these cases” (p. 4). The history of marriage, the Court assures us, has been “one of both continuity and change” (p. 6). History reveals “new insights” (p. 7) about marriage as “new dimensions of freedom become apparent to new generations” (p. 7). We don’t “always see [injustice] in our own times” (p. 11). Liberty may have meant one thing in the past, but we gain “new insight” and “we learn its meaning” with the passage of time (p. 11). As the Court says in its most candid remark on this point: “History and tradition guide and discipline th[e] inquiry [of identifying the fundamental right to marry] but do not set its outer boundaries” citing Lawrence v. Texas, (p. 11) a case in no way bounded by history. While the Court acknowledges that its prior decisions involving marriage – Loving, Zablocki, and Turner – “presumed a relationship involving opposite-sex partners” (p. 11), insofar as they contained this quality they were the product of an earlier and unenlightened age – the prejudice of yesteryear: “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part” (p. 11-12). Later Kennedy remarks that “rights come not from ancient sources alone. They arise too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era” (p. 18-19).
The bottom line that emerges is a kind of disdain for history, for what has gone before: Yesterday is the past and today is a new day in which we clearly know better. History is not something to be seriously studied. It is something to be made by those who live in the here and now.
(3) Third, the heart of the petitioners’ concern – the interest which the Court deems to be worthy of the robust protection of both substantive due process and equal protection – is their interest in self-esteem, and personal “fulfillment” (pp. 3, 17, 28) which cannot be attained absent government affirmation and public approval. That is, the petitioners seek not only to exercise a protected liberty to which they are entitled, but to have their exercise of liberty enjoy a certain public status (hence the change in terminology from "liberty" to "dignity"). Without the enjoyment of this status they will be “demeaned.”
Thus, for the majority the right to marry “dignifies couples who ‘wish to define themselves by their commitment to each other’”; it responds to the “universal fear of loneliness” and “offers hope of companionship and understanding of assurance that while both still live there will be someone to care for the other” (p. 14); it helps “achieve the full promise of liberty” (p. 14); it gives “recognition and legal structure” to a relationship so that children can “understand the integrity and closeness of their own family and its concord with other families in their community” (p. 15); and without this recognition the children of same-sex couples would “suffer the stigma of knowing their families are somehow lesser” (p. 15).
This comes through in page after page of the opinion, such that the responses celebrating the decision echoed a common theme: “We are affirmed! We are celebrated!” with the subtext being “You – Evangelical rubes, Catholic homophobes, and Christian haters – cannot think less of us. Our relationships are on equal footings. The State has made it so!”
Thus, notwithstanding the Court’s brief mention of the material aspects of marriage, it is marriage’s expressive qualities that dominate the opinion – the expression not simply of the parties’ commitment to one another (which may be achieved wholly through private ordering), but the State’s acknowledgement of and commitment to support the union. Thus, as Thomas notes in dissent, the petitioners “want to receive the State’s imprimatur on their marriages” (p. 10) – something that private ordering cannot attain.
(4) Fourth, and finally, the Court offers a truncated theory of marriage that it pieces together in patchwork fashion, from a selective reading of the Court’s prior decisions concerning marriage and sexuality.
Drawing on Griswold, Lawrence, Loving, Zablocki, and Turner the Court identifies what it says are the four “essential attributes” of the right to marry (p. 12). These four principles or attributes are: (i) that “personal choice regarding marriage” is “inherent in the concept of individual autonomy” (p. 12); (ii) that “the right to marry is fundamental because it supports a two-person union unlike any other in importance to the committed individuals (p. 13); (iii) that the right to marriage “safeguards children and families” such that its meaning draws upon the “related rights of childrearing, procreation, and education” (p. 14); (iv) that “marriage is a keystone of our social order” (p. 16).
These four somewhat abstract principles are all selected with the goal in mind of stating what marriage is in a way that same-sex couples fit comfortably within it, so that denying them the right to marry seems not only unjust but nonsensical.
Of course, Justice Kennedy is able to reach this conclusion only by ignoring what is central to the authority he cites. For example, in discussing the second of the four principles Kennedy cites Griswold v. Connecticut (p. 13) for the proposition "that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals." In this, he seems utterly oblivious to the quality of the marital relationship at issue in Griswold that makes the commitment so important and so "unlike any other," namely, the capacity to produce a child, a quality obviously lacking in all same-sex relations. Because he is oblivious to this fact he does not trouble himself with the question of why the State recognized marriage as a legal institution in the first instance, and why this legal recognition was limited to the conjugal union of husband and wife.
What Justice Kennedy fails to do is to be fully candid with the American public by articulating what marriage now is given his selection of these four principles. Stated concretely, under Kennedy’s approach “marriage” is now a genderless institution the public (legal) purpose of which is to serve as a platform for personal expression, the pursuit of individual fulfillment, and the feeling of possessing “dignity” through State recognition. Although marriage may be the familial arrangement wherein children are raised, the State must be officially indifferent to the composition of such a childrearing union. Indeed, it can have no legitimate interest in preferring a male-female union over a same-sex union such that the absence of a mother or a father doesn’t matter. A child may have a mother and a father, or two mothers or two fathers. For the State, there is no ideal arrangement. The presence of both a mother and a father is wholly optional (albeit, not an option that the child gets to select).
Candidly stating this result would be a critical step in any intellectually honest opinion reaching the same conclusion as Obergefell that had any hope of persuading those not already committed to the result of “marriage equality” as a political matter. Sadly, this step is conspicuously absent from Kennedy’s opinion and its absence renders Obergefell a tragic decision – a colossal intellectual failure of enormous proportions.
