Friday, June 26, 2015

The Link Between Liberty and Equality in Obergefell

by Michael Dorf

Justice Kennedy's opinion in Obergefell v. Hodges is a tour-de-force. I shall have a LOT to say about it--and about the dissents--over the course of the next week, but for now I will confine myself to two observations.

First, in relying on both due process liberty and equal protection, Justice Kennedy undercut the familiar but often false notion that liberty and equality are enemies or even always in tension, with egalitarian ideals coming at the cost of libertarian ones. Through carefully chosen examples he shows how attention to equality informs understandings of the proper scope of liberty. (I would be untrue to my nature if I didn't add that this was precisely the argument that Professor Tribe and I set forth in our amicus brief in the case, although I am also confident that Justice Kennedy would have reached the same conclusions absent our brief.)

Second, although there has been much discussion in the news lately about the longstanding roots of Justice Kennedy's absence of animus for gay people, it's also fair to say that the process of evolution that he describes the nation undergoing over the last four decades was also a personal process. I think it a fair bet that as recently as 2003, when he authored Lawrence v. Texas, Justice Kennedy did not think (as Justice Scalia warned and as the Massachusetts Supreme Judicial Court would soon say) that the opinion entailed a right to same-sex marriage. Even Justice Ginsburg appeared to be talking about caution as recently as a few years ago. But Justice Kennedy and the rest of the majority learned the same lessons as the rest of the country.

I'm traveling today (to a vegan gay pride kickoff!) and so won't weigh in some more for at least a little while, but I'll conclude by saying that on days like today I am very proud to be a former law clerk of Justice Kennedy.


Joe said...

Lawrence v. Texas also noted the connection between the two.

Kennedy's fair housing ruling yesterday also is something to be proud of.

Eric Segall said...

Very nice Mike!

Michael A Livingston said...

I thought the SCOTUSCARE thing was one of Scalia's better lines. I really think that liberals are underestimating his potential as a standup comic. Certainly I don't buy that the Court, or the country, have made a "liberal" turn. If the country is so liberal, why are all the major decisions (Confederate Flag, health care, even gay marriage) being made by conservatives?

Paul Scott said...

Scalia should have appealed to the geeks by quoting Amidala - as his entire dissent was barely more than a wordier version of her one line.

Thomas' dissent come closest to my feelings on the issue he covered. I think the substantive due process creation was a mistake made "necessary" by an extremely restrictive reading of 14A equal protection and "privileges and immunities" (found there and in Art. IV). I think the combination of these doctrines have made us all less free. A robust interpretation of what is meant by equal protection should lead us to a society in which it becomes very difficult for me to do harm to someone's liberty without also harming my own. Our process of largely ignoring equal protection has instead lead to the enshrinement of a very narrow set of rights (often owed to only a narrow set of persons) while leaving our basic liberty unprotected. While I almost always agree with the outcome of an SDP case (this one included), we could have so much more if we would abandon the doctrine, abandon the "suspect class" doctrine under EP and focus instead on a robust understanding of EP.

Joe said...

Substantive due process was used more because of certain developments, but there was always a certain strain of it in our law, a general idea that it is "self-evident" that we had certain liberties and it was not "due process" to be deprived of them without legitimate reasons.

The means used is only of some note. Thomas DISSENTS from protecting same sex marriage, seeing it as merely an "entitlement" and notes how same sex couples can now "live in peace" without marriage rights (patently wrong in various instances). The "harm principle" view might be valid, but it is greatly disputed & those with a "robust" view of equal protection often don't strictly follow it.

The majority mixes liberty and equal protection and does not use a "suspect class" approach. It follows recent practice of a more open-ended equal protection approach covering more groups than that traditional method.

Justin said...

Meh. The opinion doesn't start to persuade me until it reaches the sentence, "[t]he judgment of the Court of Appeals for the Sixth Circuit is reversed."

The outcome is wonderful, and correct, but the getting-there from me is problematic for a number of reasons. I would have much preferred a straight EPC decision. Gays have suffered tremendous discrimination throughout our history, and they deserve better than poetic ramblings that are philosophically confusing and depend on a battle over substantive due process that will likely not be settled until long after the culture war has been effectively won.

The Roberts dissent has the far better of the arguments on SDP. And, while Roberts' dissent is weak once it reaches the EPC, there's no counterfoil in the Kennedy opinion.

Joseph said...

"First, in relying on both due process liberty and equal protection, Justice Kennedy undercut the familiar but often false notion that liberty and equality are enemies or even always in tension, with egalitarian ideals coming at the cost of libertarian ones."

What cases illustrate this tension?


I'm re-reading the opinion standing in the shoes of someone who opposes gay marriage (left behind when they fled to Canada this morning) trying to discern the convincing constitutional argument. So far, I'm with Justin in not finding what Joe calls an "open-ended" approach to be very convincing. That the Court did not rely on gender discrimination, a straightforward EPC analysis, or even the dubious, IMO, animus rationale is curious.

Joe said...

How does a 'straight EPC decision' work exactly if you don't also show how the specific liberty in question should apply to the group in question? You need to show what marriage entails. This constant dig at "poetic ramblings" also is getting real old. And, given the constant push for the GLTBT community to get equal dignity and respect, sorry, I think they will take the dignity stuff.

"Meh." And, the author of Shelby joined by the dissenters who wanted to overturn PPACA don't convince, even with about the 10th citation of Lochner, regarding judicial restraint. If people don't like substantive due process, fine. Loads of precedent relying on just that can be tossed out too. That's the 'counterfoil' -- this includes how the right to marry was applied.

Thought experiments are fine. Judges apply decades of precedent.

Joe said...

"the Court did not rely on gender discrimination, a straightforward EPC analysis, or even the dubious, IMO, animus rationale is curious"

Gender was rarely used by the courts in this context. A concern about "demeaning" was cited, but "animus" as a constitutional principle suggests a special type of law. Different sex marriage was the norm though recent legislation could be cited to back up an "animus" claim. This approach was more comprehensive.

What is there to "discern"? The majority spelled out the criteria behind a constitutional right to marry. They apply to same sex couples. Once you stop justifying singling them out for sodomy laws since a right to intimate association applies to them too, the bridge to marriage isn't that hard. Scalia said as much in 2003. Marriage is not only protected for procreation. If you don't like the open-ended approach like those who don't like SDP, fine.

Toss out a lot of law. I said a lot. If anyone else wants to engage with the critics, go at it.

Justin said...

Joe, I don't understand your point about EPC. You can show that a statute which says "Every white person gets a puppy," violates the EPC without showing that there's a liberty interest in owning a puppy.

I'm not saying I disagree with the SDP argument. But given that the SPD argument is murky and contentious and raises lots of issues, I don't think I need to decide whether I agree with the SPD argument. Instead, the result seems obviously correct on EPC grounds. The court should just say so.

matt30 said...

I'm surprised at Roberts dissent. I thought he would write more about how gay marriage bans are essentially a form of sex discrimination and government enforced gender roles. I thought Roberts casting the issue as an extension of old fashioned gender rather than as the separate issue of LGBT identity was interesting and persuasive.

Alas, I will settle for Kennedy's dignity and autonomy doctrine. The only problem I have with it is that it's hard to apply. But I suppose that's why lawyers get paid the big bucks.

Joseph said...

Joe, you're coming across as overly hostile to good old fashioned discussion, proceeding as if it should just be so obvious. I'm sure others will engage without invitation!

The dissents state that the Court has exceeded its mandate and reverted to the decision-making of Lochner and Dred Scott. Scalia doesn't know what the Court is saying in many instances. Is the argument simply whether 5 members of the Court, using an open ended approach, consider something to be a protected liberty interest? I'm asking my questions on the assumption that this is not actually the constitutional argument.

Joseph said...

A related question: are states now prohibited from doing away with marriage, at least like Alabama is pursuing? It seems the answer would be yes.

Greg said...

I'd like to echo the comments here (you're all faster readers than me) and say that I'm fairly well convinced by the Roberts dissent that SDP was the wrong way to go here. In part III of his dissent he very nearly makes the argument that the majority could have used to reverse on EPC grounds. The Kennedy opinion is meandering and does have the uncomfortable feel of creating new "fundamental" rights on the basis of a policy preference.

I agree with the result, I just would have preferred an opinion that said "This is discrimination, plain and simple, and thus in violation of the EPC."

I'm not sure this would have changed anyone's mind (read: Roberts) but it would have at least provided a clearer picture for the public and less opportunity for the dissents to look like the more responsible party.

Joe said...

JS: I apologize if my tone seems hostile but my concern was that I was dominating the conversation with multiple comments. And, except for a "good job" and a "guess it works," not just who substantively disputed numerous criticisms.


Greg: The comments also seem conclusionary. How does Kennedy create new fundamental rights on the basis of policy preferences? For instance, Balkanization notes coverture was a "core" aspect of marriage. But, the dissents handwave all changes except for one (man/woman) as not really "core." Why? If you examine Kennedy's discussion of the aspects of marriage (which is reflected in case law), marriage has diverse aspects not tied alone to man/woman or procreation. Why isn't the DISSENTS a matter of "policy" preferences?


JS: Why is this decision "Lochner" and not let's say the right to use contraceptives or Citizens United or Heller (handguns)? The majority doesn't on their say-so rule here. The "right to marry" as a constitutional right has been around for quite some time. Over time, applying usual means of jurisprudence, rights develop in a range of ways. Prof. Dorf, e.g., co-wrote a book on the subject. It's hard to summarize in a sentence or two the "rule" there. I'm unsure exactly what is special about this case in this respect. In 1890, e.g., the idea that free speech would involve stopping states from banning 'porn' would be deemed outrageous. Over time, not just on the say-so of five people, freedom of speech developed.

As to doing away with marriage, will a state do away with every single privilege or immunity arising from civil marriage? Will spousal immunity end?


Justin: You can show that puppy law is bad since puppy ownership is not reasonably applicable to color. OTOH, allegedly, marriage "is" tied to man and woman. You have to examine marriage to show the classification is illicit. Likewise, the disabled has been harshly treated in various ways. "Three generations of imbeciles are enough" etc. But, there are certain things you can deny to the disabled even in certain cases basic things like service on the jury (if you are blind, e.g.)

As to it being "murky," debatable -- the right to marry is longstanding. And, the dissenters reject the two types of marriages are equal. Why? To them "marriage" means one man, one woman.

Joseph said...

Joe: I'm glad there is no hostility on your part but you do sidestep the criticism/concern being raised, suggesting that this case could fall into a spectrum of cases that arguably ignore the rule of law, or that at least push it in unforeseen directions. While that is an interesting historical view to consider, it doesn't answer the concern of how the Court has decided this particular case.

Lest we speak past each other, I don't accept Prof. Segall's argument that the Court is not a court - though this is exactly the case that could permit Prof. Segall to find more adherents. I also don't intend to couch the discussion in originalist versus living constitution terms.

I'm not saying there is an alternative opinion that would have been immune from all the charges now levied, but that an alternative opinion would have addressed the issues in a direct and more satisfying way and put this case more solidly into the Griswold category than the Lochner category of cases. Perhaps the question should be 'why didn't the Court decide according to a more familiar EPC analysis or even an envelope-pushing gender discrimination basis?'

egarber said...

I noticed in the opinion that on the fundamental rights dimension, Kennedy invokes the notion of "couples."

Is the fundamental right to marry defined as a union between two people? Or is it a broader deference to legislative determination, with the equal protection clause doing the "limiting principle" work?

In other words, though the slippery slope argument is idiotic on many levels, I am curious about the actual legal distinctions that defeat it.

egarber said...

oops. forgot to hit the email follow up. New comment here to invoke it.

Unknown said...

Folks, the Lochner/Dred Scott objections to historically unprecedented unenumerated substantive due process rights are tired, and just plain wrong. First, the idea that history and tradition help us avoid unjustified judicial activism is just an ad hoc enshrining of judicial bigotry. Clearly CJ Roberts is sensitive to the charge of bigotry, but hiding behind history and tradition to avoid the charge is absurd. History and tradition are just past bigotry made present. That the CJ can't see this reveals just how prejudiced he really is. Second, there is a simple answer to the Lochner problem, one that grants the existence of liberty of contract as a fundamental right. The problem is that the exercise of any right should never be pointless or meaningless. Example. Suppose you have a fundamental right to speak, but I make exercise of the right pointless by preventing people from listening to what you have to say. It's a travesty to suggest that such a scheme protects the fundamental right to speak. For the right to speak to be meaningfully exercised, there must be a real opportunity for the potential audience to listen. Similarly, suppose that Jenny has the right to contract to work for whom she pleases, but that she is exercising this right in a context in which the wages/benefits/working conditions employers are offering are below subsistence, in part because there is a large pool of unskilled workers competing for the only sorts of jobs for which Jenny is eligible. Does this scheme really protect Jenny's right to liberty of contract? No. It makes a mockery of it, because its exercise under the circumstances is virtually meaningless: "work for me for starvation wages in sweatshop conditions or starve" is not a real choice. The problem with Lochner is not with the substantive due process right of liberty of contract. The problem lies with the Court's blindness to the circumstances within which this right is exercised.

egarber said...

This is unrelated, but the whole effort to frame D Scott as a substantive rights decision reminds me of efforts to revise confederate history. The latter has been an attempt to sanitize history and wash away slavery. The former misses the key point: D Scott is an originalist ruling at its core.

Joe said...

Joseph Simmons: I am not trying to "sidestep" things here. My argument is that nothing particularly unique is going on here. And, trying to summarize how fundamental rights are determined is a complicated matter, something articles & books are written about. I am not saying that they are "ignoring the rule of law." It just is unclear what is particularly special about how this case went.

Also, why is this case in "the Lochner category of cases" as compared to Griswold? Certain people criticize Griswold (and Roe) and in fact being in the "Lochner" category (Balkanization blog has a post about this). The opinion did put this case in the "Griswold" line. It discussed how there were a line of cases involving people making certain intimate decisions, including a long line of cases involving the right to marry.

It discussed the aspects of marriage involved in that right & that same sex couples wish to get married for the same reasons. And, the state have no valid purpose to deny them the right. The decision then notes, as Prof. Dorf notes, various cases show an interaction ("synergy") between fundamental rights and equal protection. For instance, one case used equal protection to strike down a burden on unmarried couples using contraceptives. The case noted a fundamental right (due process liberty) was at issue and that denial of it to a class of people here was illegitimate. This was done in various cases; due process and equal protection connected.

If gender discrimination is "envelope pushing," it would be a bit strange why it would not in an already controversial case not use the right to marry approach that is broadly protected by precedent. The due process approach was not unfamiliar. Griswold itself is a due process case. Also, a straight equal protection ruling could have been more open-ended, more activist covering more ground. The Supreme Court in general try to not decide more than necessary these days.

[Reply from Joe]

Joe said...

Samuel Rickless' interpretation of Lochner is neat - I personally think there is a right to contract & the issue there was the reasonableness of the regulation. To me, Harlan (dissent) had the best opinion though Holmes gets most of the love.