Saturday, June 27, 2015

In Defense of Justice Kennedy's Soaring Rhetoric in Obergefell

by Michael Dorf (cross-posted on SCOTUSblog)

In the nature of split decisions, the majority opinion makes an affirmative argument and the dissent criticizes that argument, with the majority responding, if at all, in footnotes and other asides. That pattern holds in Obergefell v. Hodges. In sometimes-soaring language, Justice Anthony Kennedy’s opinion barely addresses the pointed and occasionally nasty critique leveled in four separate dissents, perhaps leaving the impression that nothing can be said in response.

That impression is false. None of the points made by the dissenters withstands critical scrutiny – not least the claim that because marriage originated as an institution to address accidental procreation by heterosexuals, a state has a rational (much less compelling) interest in forbidding gay and lesbian couples from participating in the modern institution of marriage.

Still less persuasive is the dissenters’ repeated insistence that this case differs from prior marriage cases because those cases did not involve the definition of marriage. To quote Justice Antonin Scalia’s acerbic dissent, “Huh?” Would the eight Justices who signed onto the fundamental rights portion of Loving v. Virginia have reached a different conclusion if the Virginia statute defined marriage as an institution between a man and a woman of the same race?

Chief Justice John Roberts, in the principal dissent, sets forth the most elaborate argument, but fundamentally he makes three points: (1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. Beyond that, his dissent repeatedly compares the ruling to Lochner v. New York, citing the case a whopping sixteen times.

Nearly all of what the Chief Justice says would work equally well as an argument against all unenumerated rights, indeed, against all judicial decisions that draw inferences from vague language contained in enumerated rights as well. The other dissents do not fare better.

Justice Clarence Thomas (joined by Justice Scalia) is more succinct but also more radical than the Chief. He rejects substantive due process in its entirety, but then, citing Founding Era and earlier texts, provides two fallbacks. To the extent that Justice Thomas would allow any substantive due process it would be for the liberty of movement only, and failing that, for no more than negative liberties. Marriage, as state recognition, would not be a fundamental right for anyone. Recognizing that, taken at face value, his view would require overruling Loving (in its fundamental rights aspect), Zablocki v. Redhail, and Turner v. Safley, he elevates the happenstance that those cases involved criminal prohibitions into central features, concluding that “in none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.” (Emphasis in original.) Thus, two Justices of the Supreme Court apparently believe that, consistent with the Constitution, a state could forbid, say, people (even of the opposite sex) over the age of fifty from marrying.

Justice Samuel Alito (joined by Justices Scalia and Thomas) is chiefly concerned about people who oppose same-sex marriage on religious grounds. Will they now be required to participate in same-sex marriages? The short answer is no. As Justice Elena Kagan noted during the oral argument, even to Justice Scalia’s evident satisfaction at the time, clergy who solemnize marriages have long been given the freedom to decide which ceremonies at which to officiate based on criteria that would be constitutionally problematic in other contexts. As for others – such as religiously scrupled bakers and florists – absent (much-needed) legislation, the state action doctrine permits them the freedom to discriminate against same-sex couples.

And then there is Justice Scalia, who professes to worry about the ruling’s implications for democracy but seems more irked by Justice Kennedy’s prose style. In perhaps the most intemperate line in the U.S. Reports, Justice Scalia mocks the opening line of the majority opinion: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Justice Scalia replies: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” in this way, “I would hide my head in a bag.” This from a Justice who – just in cases that are centrally relevant to the issue in Obergefell – once began a dissent by accusing the Court of mistaking “a Kulturkampf for a fit of spite” (as though Prussian anti-Catholic policies were an appropriate model for Colorado’s treatment of its gay and lesbian minority), in another dissent compared same-sex intimacy to bestiality, and in a futile effort to read Loving as having nothing to do with evolving values, invented his very own inaccurate text of the Fourteenth Amendment.

Forget about the bag. Justice Scalia should not appear in public except in a full burka.

What bothers Justice Scalia and, to a somewhat lesser extent, his fellow dissenters, about Justice Kennedy’s soaring rhetoric? In prior gay rights cases, they have, with some justification, complained that the majority was unclear about how its holding fit with conventional constitutional doctrine, but there is little cause for complaint on that score in Obergefell. Justice Kennedy says with admirable clarity that marriage is a fundamental right and that the state has not offered a sufficient justification for denying it to same-sex couples.

Both Chief Justice Roberts and Justice Scalia are puzzled by Justice Kennedy’s invocation of “synergy” between the Equal Protection and Due Process Clauses, but they ought not be. Especially not Justice Scalia, whose opinion in Employment Division v. Smith explained away prior cases that obviously contradicted the rule he announced there by describing them as resting on a “hybrid” of free exercise and other rights (including substantive due process!). Viewed from the window of Justice Scalia’s glass house, “synergy” is argle bargle but “hybrids” rest on a firm constitutional foundation.

Were the dissenters more interested in understanding than ridiculing the majority opinion, they would see that equal protection considerations help explain why a right to same-sex marriage does not necessarily open the door to polygamy, adult incest, and the other supposed horribles in their gay shame parade. With a few notable exceptions, for thousands of years people have been stigmatized, beaten, and killed for the sin of loving someone of the same sex. The dissenters regard this shameful history only as the basis for continued denial of constitutional rights. The majority, by contrast, sees in this history of subordination a special reason to be skeptical of the reasons advanced for excluding same-sex couples from the institution of marriage.

Justice Kennedy writes: “Especially against a long history of disapproval of their relationships, th[e] denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.” It really is that simple.

Is it possible that some day we as a society will come to regard plural marriage in the same way? Sure. Just as a social and political movement led a Court whose Chief Justice once dismissed the idea of an individual right to bear arms as a “fraud” to change its mind about that constitutional right (as Reva Siegel has argued persuasively), so too a social and political movement for plural marriage could likewise succeed and if it does, the Court will follow suit.

Indeed, notwithstanding their citations of Magna Carta and The Federalist, even the dissenters appear to be evolving when it comes to gay rights. For all of his fulminating, at least Justice Scalia is no longer comparing gay sex to bestiality. Meanwhile, the Chief Justice was gracious in inviting the victors to celebrate their victory.

That is also precisely what Justice Kennedy was doing in a prose style that sometimes bordered on poetry. And as numerous pictures of celebrations around the country illustrate, it worked.

My gay and lesbian friends have no illusions that Obergefell marks the end of what one with whom I partied at a gay pride event in Brooklyn last night called their “liberation struggle.” We still need a federal antidiscrimination law. And as importantly, hearts and minds must continue to be won over.

But the Chief Justice is wrong in suggesting that only elections will do the trick. For better or worse, in the U.S., courts play a vital role in a complicated dance involving grass-roots activists, political organizers, elected officials, and ordinary citizens. Much work remains to be done with each of these constituencies but for now we can pause to celebrate a hard-won victory. Justice Kennedy’s opinion fittingly solemnized the occasion.


Con Law Junkie said...

Justice Kennedy's opinion does an amazing job of projecting an intense, immediate sense of validation and dignity to the beneficiaries of the decision, and it is a respectfully written decision as a whole. It is fitting for the momentous issue involved. And, it reflects his sincerity.

P.S. I am a regular female reader (and an atty), and I thoroughly enjoy this blog.

Joe said...

CJ Roberts, in a dissent more bitter than I expected (actually thought there was a reasonable chance of a partial concurrence!), cited Locher a lot. Toss in Dred Scott, the "Bush v. Gore" of another era for some. Denial of constitutional rights to blacks & settling the territorial question a bit different from SSM though.

I appreciate this discussion in part since some readers think Roberts and/or Thomas in some fashion have the better argument. They don't. For instance, Roberts selectively says the "core" of marriage is one man/one woman, providing an overly limited view of its history. Judge Posner deals with that nicely at Slate.

Thomas rejects substantive due process but what about privileges or immunities, which he has appealed to in the past to cover the same basic ground? Surely, if we examined history, there could be a good case to be made that the right to marry and raise children "without a doubt" (Meyer v. Nebraska, seeing it as a "liberty" interest) would be there. Slavery would be a sort of anti-freedom there. And, it not just about benefits. What about spousal immunity? Or traditional freedoms from government intrusion only enjoyed if one is married including the ability to have sex or cohabitation.

Finally, the justices in dissent -- as many have noted -- are not really people that sell judicial restraint that well. Roberts gets a bit of cred for his PPACA opinions though even there his views in the first cases were restrictive as to the Commerce Clause and Medicaid (two liberals probably joining him there pragmatically). But, what about Shelby, Citizens United or Heller? Did gun owners in DC feel cheated because they didn't win legislatively? The fact the 2A "says" what the majority argued and the 14A doesn't here is question begging.

Addendum: And, yes, some time in the future society might accept polygamy to the extent it does same sex relationships so that licensed polygamy (polyamory -- unmarried multi-member relationships -- already protected) is seen as a liberty warranting equal respect. As of now, there are differences (as Posner again cites as do others). Plus, the majority is right that precedent supports monogamy. Polygamy not at issue in this case (nor incest), it is not really wrong of him not to show more why unlike same sex couples that that isn't protected by the Constitution.

Shag from Brookline said...

Juan Cole at his Informed Comment blog has posted today (6/28/15) "No, GOP, biblical Marriage was not between one man and one woman."

and addresses polygamy and sex slaves in a male dominated society.

Shag from Brookline said...

Ross Douthat's NYTimes column today - "Gay Conservatism and Straight Liberation" - addresses Obergefell from his conservative prospective, closing with this:

"Perhaps, with same-sex marriage an accomplished fact, there will be cultural space to consider these lessons and claims anew. Perhaps.

But seeing little such space, and little recognition that anything might have been lost along the road we’ve taken to this ruling, in the name of the past and the future I respectfully dissent."

This suggests that when life hands conservatives, they make lemonade. But Ross forgot the sugar. (When life hands progressives lemons, we get tequila and salt.) Douthat's dissent is much more respectful than those noted in Mike's post.

I read Mike's post last night after watching a movie on TV and was too tired to comment. Back in bed, I didn't readily fall asleep and thought of Mike's post. Then my thoughts went back to early 1954 when I was finishing law school with electives and getting ready for the bar exam when Brown v. Bd. of Educ. came down, unanimously, one opinion, a Hallelujah! moment after so many years of Jim Crow. But that did not with all deliberate speed resolve Jim Crow: witness the recent tragic events in Charleston, SC. With the several dissents in Obergefell, what can we expect? I thought of Sandy Levinson's political dysfunction concerns that focused on the elected branches, particularly Congress, as well as Sandy's extensive article on nullification and secession as perhaps reactions/solutions to political dysfunction. These dissents make it more clear that this dysfunction has extended to the Court, especially with Justice Scalia's "attack" on the undemocratic makeup of its membership. [Note my earlier comment on another thread on Groucho Marx and how Scalia should perhaps become a Marxist.] I wonder if the dissenters might attempt to lighten some of their negative comments a tad. Race, sex and healthcare are involved in recent decisions of the Court, with ultra negative dissents as we head into the 2016 presidential campaigns with even more GOP candidates declaring that will turn into a TV reality show. (We haven't heard from Sandy in a while.)

By the Bybee [expletives deleted], a big "Thank You" to Mike for his perspective.

Joe said...

The op-ed is upset about the move against marriage in recent years leaving one to think perhaps he should read or re-read "The Way We Never Were" by Stephanie Coontz. It is ironic that he argues that Kennedy's p.o.v. furthers relationships out of marriage when the opinion is so positive about marriage. A key reason gay rights involved rights to have sex outside of marriage (and in the process for some to promote that sort of thing) is that they were denied the right to marry in the first place. Make people "outlaws" they might seize the title.

A more conservative approach was possible -- Griswold was after all about contraceptive use by a married couple. But, though Justice Harlan (a conservative) suggested a middle path there, the pushback was more all or nothing in some parts. Justice White didn't say "well abortion only for limited reasons" -- he went all the way & other conservatives followed. Using a case about marriage, something David Brooks in the past from the conservative side felt was more of a duty than a right, as a dissent of sexual freedom overall is a bit much.

But, I do support the more polite tone. I think it is unfortunate that justices -- at times from both sides -- cannot dissent less bitterly. Scalia and Ginsburg are friends but he still has to vent in a way that makes him look like a little boy. Oh well. Guess it keeps him young.

Section B said...

I have two questions:

1) I find that the analysis Kennedy uses in his opinion is sound and that we got the best outcome for same-sex marriage, but I can't help but think that the gay rights movement would have been better served by recognizing the group as a suspect classification and subjecting any law/legislation that seems to restrict or prohibit their rights to strict scrutiny (highest form, not extra soggy). This opinion doesn't go nearly that far, of course. Do you feel like this is an issue (addressing the classification) the Court will be forced address at some point, and do you think this is best way to go?

2) As a liberal, I've developed a greater appreciation and liking of the Chief Justice in the last few years as he comes across as more pragmatic and reasoned in his judicial reign (generally, of course). For that reason I was rather disheartened to see him leading the dissent with some rather flawed reasoning. But based on how he wrote his dissent, it seems like he was at least in support (or willing to be in support) of the gay rights movement as a social policy. Is there any scenario that the Chief joins a majority last Friday? And do you think when the next issue inevitably ends up on the Court's docket, he may be compelled to jump to the majority in recognizing rights?

cheyanne said...

Why does Scalia’s first sentence: “The substance of today’s decree is not of immense personal importance to me” seem so odd to me?
At first, I thought that the phrase “immense personal importance” was ambiguous . . .I thought: “geez, a judge who tells me his personal feelings about a case right from the get-go, why does he think that I should know his personal view point? Is it different from his “judicial” viewpoint? Is he saying that if he wished to have a same-sex marriage, the issue would be of immense personal importance to him? Is he emphasizing that though he is dissenting, he is neutral on the questions of same-sex marriage?
But he then tells me what is of importance to him: who decides today’s question. And he explains that the Supreme Court is not the place and this is not the time.
Unfortunately, he goes on then to explain passionately how the Court came to the wrong decision inthis case.
If he had said “yes there are grounds for deciding in favor of same sex marriage, BUT this is not the time or place to decide that issue.”, I might be more inclined to accept his protestation of neutrality. However, he uses his dissent to argue the very issue he says should not be argued . . .

Shag from Brookline said...

It was good - a pleasure - to hear from Sandy at Balkinization with his thoughts.

Hashim said...

If that's the best you can do in responding to the dissents, it's probably for the best that AMK stuck to his normal sweet-mystery-of-life "analysis."

On polygamy, you don't dispute 1) that all four of the "principles and traditions" that AMK cites to support his DP holding apply *equally* to polygamous marriages (setting aside his unreasoned and arbitrary insertion of the modifier "two" in certain sentences), or 2) that the various harms from polygamy (risk of coercion, etc.) don't support a blanket ban under the strict scrutiny tailoring that would be required under conventional legal analysis of a DP infringement. Instead, you merely invoke the EP "synergy" of history of "bias" against gays. But how does that distinguish polygamy, given that the Mormons were driven across the country, their founder was lynched, and Congress conditioned Utah's entry into the union on subordinating its citizens' religious belief in polygamy. It seems abundantly clear that there's a long history of "bias" against polygamy grounded in morality, and that's what's driving the polygamy bans -- not some grossly over- and under-inclusive interest in coercion, etc.

On unenumerated-rights generally, there's an obvious difference between judicially recognizing unenumerated rights that are consistent with this country's history and tradition (i.e., invalidating novel laws that are inconsistent with unwritten but accepted legal norms -- e.g., a one-child policy enforced through mandatory abortions), and judicially inventing rights that are so inconsistent with this country's history and tradition that literally every State has been violating the purported right since the 14A was enacted (and for the next 100+ years) without any objection by anyone until quite recently, because literally no one during that period would have dreamt that such a right existed, and the people who enacted/ratified the 14A would have made that crystal clear at the time if anyone had had the audacity to argue otherwise and wasn't immediately dismissed as insane. (Cf. Brown, where many people at the time argued that de jure racial segregation was inconsistent with the 14A, and many States ended de jure racial segregation in the wake of the 14A.)

Hashim said...

PS. On "hybrid" rights and "synergy," it's one thing to decline to overturn certain old cases by adopting a relatively unpersuasive distinction (indeed, one that perhaps the author himself didn't really believe, but was forced to adopt because the votes weren't there to overturn the old cases) -- it's another thing to actually believe in some magical "synergy" theory where the sum of 0 + 0 = 1.

Scott Martin said...

@Hashim: The first requirement for determining whether a restriction is Constitutional is an ability to ask the question with some degree of objectivity. Clearly, as you so colorfully described, Americans were unable to consider that question with an appropriate degree of freedom until the societal understanding of homosexuality changed. But it *has* changed, and the way that we understand Constitutional freedoms must be able to change with it, unless you want to straightjacket the nation into an 18th-19th century view of morality, propriety, and liberty. (Of course, perhaps you'd find that preferable. I don't.)

Joe said...
This comment has been removed by the author.
David Ricardo said...

I am not certain the Mr. Dorf’s interpretation of Justice Thomas’s position,

“Recognizing that, taken at face value, his view would require overruling Loving (in its fundamental rights aspect), Zablocki v. Redhail, and Turner v. Safley, he elevates the happenstance that those cases involved criminal prohibitions into central features, concluding that “in none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.” (Emphasis in original.)”

holds. Justice Thomas in defining ‘liberty’ says this.

“Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They 10 OBERGEFELL v. HODGES THOMAS, J., dissenting have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.”

The gall of this opinion, which is surely lost on the shallow intellect of Justice Thomas is that that he voted in Lawrence to allow the state of Texas to criminalize homosexual activity. He supported the right of government to prevent same sex couples from cohabitating, from raising their children in peace, from being able to travel freely and make their homes where they please. Under the rule of law that Justice Thomas believes is correct they would not be free from incarceration or physical restraint, they would not have been left alone to order their lives as they see fit. The glorious liberty Justice Thomas cites exist in spite of, not because of his legal positions.

“Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.”

So Justice Thomas would have far more likely than not have allowed the state of Virginia to criminalize inter-racial marriage. In his world ‘liberty’ is not constitutionally defined as being able keep a person out of jail if they were to marry the person of another race.

The irony here, for those few who miss it is that had Justice Thomas been part of a majority that upheld the right of Virginia to ban inter-racial marriage Justice Thomas would now be sitting in jail. And while he says this

“The government cannot bestow dignity, and it cannot take it away”

it seems fair to say that putting Justice Thomas in jail for his inter-racial marriage would surely have taken away much if not all of his dignity.

Joe said...

Justice Kennedy provided analysis and multiple places discuss it positively but yet again we have sneering labels and use of scare quotes around the word.

Polygamy is back. It is not "arbitrary" to put "two" because case law does speak of "bilateral loyalty" and so forth. Precedent also supports rights of same sex couples. Fitting the two together, same sex couples would enjoy the right to marry monogamously. There are no similar cases support the right to polygamy, nor has it reached the level of acceptance in society, case law and policy. Precedent and such criteria are ways that courts determine the application of constitutional rights.

[Scott Martin is quite correct -- it took time for blinders to be taken off to understand how it was wrong to deny same sex couples the rights of monogamous marriage -- the issue at hand -- and this factors into the discrimination issue. A key moment here was the 1970s when homosexuality was no longer officially labeled a mental illness. Changes in other areas, such as gender, is comparable. It would shock people of yore there is no coverture and various other modern day things that are deemed constitutionally protected.]

Polygamy is not at issue in these cases. When polygamy comes up, as certain blog discussions already began to discuss, it might eventually be recognized while case law, public policy, societal practice etc. also are at the stage of same sex marriage. Already, privately, people do generally have the right to have polygamous relationships. Utah's strict "purport" to be marriage law is an outlier there and I'd welcome it being struck down on animus or some other ground as a lower court judge has.

There is no "magical" synergy. Equality and liberty is connected - this was seen, e.g., in school segregation cases where in respect to D.C. due process was used and for the states equal protection. There are multiple cases where the two were used together. Equal protection of rights goes back to the Declaration Independence, where equal liberty was seen as "self-evident." Duly noted that Hashim thinks Scalia made stuff up.

Publius the Clown said...

I'm still reading the dissents, but I wanted to comment on a few things in Professor Dorf's post.

Would the eight Justices who signed onto the fundamental rights portion of Loving v. Virginia have reached a different conclusion if the Virginia statute defined marriage as an institution between a man and a woman of the same race?

The question isn't whether there's a definition of marriage in the pertinent statute. The question is, what's the definition of the fundamental right to marry (i.e., the constitutional right) under the Court's precedents? Justice Kennedy admits that the Court's precedents have presumed opposite-sex marriages. That's another way of saying that that's what the right was, which implies that the Court is now changing the definition of the right. But since the Court never actually defines the right, it ducks the issue.

I would determine whether there's a right to marry at all, and, if so, what that right is, by looking to the Privileges or Immunities Clause. That Clause enacted Corfield v. Coryell, which held that the privileges or immunities of U.S. citizens are rights that "have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign." If the right to marry is one of these, its definition certainly is only the right to marry a member of the opposite sex.

Even under the Court's precedents, only rights that are deeply rooted in the nation's history and traditions qualify as fundamental rights. So again, you have to ask what the definition of the deeply-rooted right is. And if you change the definition, you're not talking about the same right.

The Court tries to get around this by saying that its past right-to-marry cases didn't ask whether a particular kind of marriage is valid. But those cases all involved restrictions on heterosexual marriage, not an expansion to something that hadn't ever been called marriage before. They didn't change the definition of the right.

Of course, living constitutionalists think that the meaning of constitutional rights can change, and that the Supreme Court can declare their new meanings. That's one reason that I'm an originalist! So, at its base, the dispute in Obergefell may be axiomatic; it may boil down to a dispute over judicial philosophy.

Nearly all of what the Chief Justice says would work equally well as an argument against all unenumerated rights[.]

Not if you proceed as I suggest above: first, determine whether there's a deeply-rooted right; next, define the right that's deeply-rooted.

[I]n another dissent [Justice Scalia] compared same-sex intimacy to bestiality[.]

I respectfully but firmly dissent here. Scalia's Lawrence dissent did no such thing, although legal academia has firmly enshrined the myth that it did. What Scalia actually says in Lawrence is: the majority says that sexual morality can't serve as a rational basis for laws restricting sexual conduct, but, if that's true, then laws against other things, including bestiality, are "called into question" because the Court provides no limiting principle. He's not comparing same-sex intimacy to bestiality at all; he's just saying that the Court's rule would apply equally to one kind of law about sex as to another. Indeed, his whole point is that the Court's rationale doesn't distinguish between these two kinds of sex.

I haven't read most of the dissents so this isn't a comprehensive response, but I thought these points were worth noting.

Scott Martin said...

@Publius: As I noted to Hashim above, I think it's disingenuous to make this argument without acknowledging that until very recently in American history, discussions about homosexuality were practically unthinkable within the context of American culture. The fact that previous questions about marriage all involved "traditional" opposite-sex marriage hardly seems dispositive under those circumstances. You're basically arguing that American gays and lesbians should continue to be Constitutionally excluded *because of* of their historical oppression.

Publius the Clown said...

@Scott: No, I'm just arguing that the right to marry has to have a definition that's independent of the dispute in Obergefell. The Court goes about things backwards: it doesn't define the right to marry, it just jumps straight to whether gays and lesbians should be excluded from that right. When it says that they can't, it effectively redefines the right without saying so.

Looking at things more concretely, the right to marry in 1868 meant the right to marry the opposite sex. The right to marry in all of the Court's previous fundamental-right-to-marry precedents meant the right to marry the opposite sex.

I'm an originalist, so I don't believe that the Court can redefine rights. But even apart from that, the Court should admit that it's redefining the right to marry and then justify that redefinition (both why it can redefine it and why its new definition is the correct one).

Scott Martin said...

@Publius: And in 1789, the right to free speech meant speaking to persons in physical proximity to you, the right to freedom of the press involved a literal printing press, and the right to keep and bear arms meant a muzzle-loading black-powder firearm. Things change, and our understanding of our Constitutional rights changes with them. I find it hard to believe that the Founders intended that the Constitution be amended before electronic communications were covered under the 1A, or cartridge-loading firearms under the 2A.

With respect to your "more concrete" examples, you're just talking past the point I was making: the Constitutional question of same-sex marriage could not have been asked until very recently, and so the failure to account for it in previous Court decisions on marriage is not dispositive. Even in this decade, the principle of addressing only the instant question kept the Court from making a general determination on marriage equality in Windsor, even when it was patently obvious to everyone that this question would come directly before the Court sooner rather than later. To suggest that there is no Constitutional basis for marriage equality because 19th and 20th century courts failed to anticipate changes in American sexual culture a century or more in advance is ludicrous.

Finally: can you point to a specific definition of the right to free speech, or freedom of the press, or the right to keep and bear arms? Are these rights not defined by the Court at the perimeter, by ruling whether laws infringe on the right, rather than at the center?

Asher said...

If I could try a response to Hashim, I don't see that polygamy's a reductio of Kennedy's position. If that's where his reasoning, if one can call it that, leads us, maybe that's okay (and if our bans on polygamy can't withstand searching review, as you suggest, maybe that tells us something). And I don't think it's entirely correct that all four of Kennedy's principles and traditions apply equally to polygamy. From the perspective of avoiding loneliness, polygamy is redundant at best and (as Posner argues at the otherwise execrable Slate Breakfast Table) harmful at worst, as it reduces the number of potential spouses for people who aren't up to the task of attracting multiple wives. Our tradition (or is it a principle?) of marriage being a "keystone" of society also might not apply to polygamy; there's no tradition of it. I understand that until recently same-sex marriages weren't traditionally a keystone of society either, but some features are more relevant to defining the tradition than others, and a determined Court could certainly argue that number's more relevant than gender. And as far as autonomy goes, I take it that polygamy's opponents believe polygamy has autonomy costs where women are concerned. The bottom line when it comes to distinguishing this thing is going to be its infinite malleability.

That said, though, I think there's a more satisfying reading of Obergefell (more satisfying than playing games with the "principles and traditions") that addresses your concerns. This opinion, by avoiding saying anything about scrutiny, at least leaves the door open to saying that where litigants seek major deviations from recently/currently prevailing definitions of marriage, the Court will be cautious and review for rational basis or rational basis with bite only. Besides a purely definitional/conceptual argument that didn't really fit into any tier of scrutiny and was therefore met with a definitional/conceptual response, this opinion considers only one positive justification for banning gay marriage, and more or less scoffs at it as absurd. So the opinion, on its own terms, is consistent with rational basis (though perhaps the result isn't consistent with it by my or your lights), while it's very difficult to see strict scrutiny in this opinion, even implicitly. The same could be said of Windsor; while a more careful jurist might have needed something closer to strict scrutiny to reach Kennedy's result, Kennedy himself wasn't doing strict scrutiny. Now, rational basis-plus for challenges that seek major deviations from traditional marriage would represent a major deviation from traditional doctrine, but an extremely appropriate one, I think.

Publius the Clown said...

@Scott: Regarding your final question, I don't know why I need to point to a specific definition of free speech, free press, etc. The point is, those rights should be defined by what they meant when the provisions that include them were originally adopted. They're not defined by the type of cases that are brought, as you seem to suggest. And while the precise nature of a definition may sometimes be in doubt as it pertains to a given case, there can be no doubt that the right to marry, at the time of the Fourteenth Amendment's adoption, didn't include gay marriage.

That gets to your point about speech meaning speaking to persons in physical proximity to you and press being a printing press. First of all, I think your definition is too narrow. Handwritten letters, which were ubiquitous in 1791, are neither of those things, but does anyone doubt that the freedom of speech applied to them too? Second of all, specific new examples of (for instance) speech can still be covered as long as the original definition of the term stays the same. I talk about this more here (see the sections entitled "A Healthful Constitution" and "The (Search) Net Widens").

Regarding your paragraph about my "more concrete" examples, I do think that we're probably talking past each other because we're working from different axioms. But let me say this: the Court seems to have improperly extricated the existence of a right from its definition. Even if the Court is right that there's a fundamental right to marry (which really should be determined by looking at the Privileges or Immunities Clause and Corfield v. Coryell, but never mind), it has to ask what the definition of the right is. And the definition, no less than the right itself, should be found by asking what's deeply rooted in the nation's history and traditions.

More to the point, it should ask what definition of the right to marry was deeply rooted as of 1868, when the people ratified the Fourteenth Amendment. That's the only objective way to determine it. Instead, the Court has arbitrarily redefined it.

You say that "[t]o suggest that there is no Constitutional basis for marriage equality because 19th and 20th century courts failed to anticipate changes in American sexual culture a century or more in advance is ludicrous." But why should "changes in American sexual culture" affect how the Constitution is interpreted? Those changes have nothing to do with the document.

This is why originalists and living constitutionalists just see the world in fundamentally different ways, and ne'er the twain shall meet. But originalists have the better argument.

Sebonde said...

Justice Kennedy should have cited Jacobellis v. Ohio in his Obergefell opinion. If he had, he could have spared us much prolixity in his strained attempts to explain how the court ascertains a fundamental, yet constitutionally unenumerated right and merely wrote, "A fundamental right is like pornography. I know one when I see it."