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.