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.