Brett R. Turner, Senior Attorney, Family Law, National Legal Research Group
On June 26, 2015, the United States Supreme Court issued its long awaited decision in Obergefell v. Hodges. In a very sharply divided 5-4 decision, the Court held that the fundamental right to marry applies to persons of the same sex.
The majority opinion strongly resembles Loving v. Virginia, 388 U.S. 1 (1967), the landmark decision that recognized that the right to marry includes the right to marry a person of a different race or color. The opinion identified one single, unitary, fundamental right to marry, which is identified as a fundamental component of American life and, indeed, of human existence.
The opinion then defined the question as whether this fundamental right to marry extended to same-sex relationships. The Court held that it did. Given the central importance of marriage to human existence, to refuse to recognize same-sex marriage would deeply demean gay persons:
There is no difference between same- and opposite-sex couples with respect to [the importance of marriage]. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
Slip op. at 17. Refusal to recognize same-sex marriage would also harm the children of gay people:
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
Id. at 15. These passages evoke one of the consistent threads in Justice Kennedy's jurisprudence: the notion that gay and lesbian persons have a right to human dignity and that the government cannot adopt policies which take that dignity away. This notion can also be seen in Kennedy's opinions in Romer v. Evans, 517 U. S. 620 (1996), and Lawrence v. Texas, 539 U. S. 558 (2003).
The majority recognized the long tradition of limiting marriage to opposite-sex relationships. But it consciously invoked the dramatic change in social attitudes toward same-sex marriage in recent years, and essentially dismissed the traditional limitation as a result of historical bias. "The Court, like many institutions, has made assumptions defined by the world and time of which it is a part." Slip op. at 11. To the majority, the traditional practice of limiting marriage to opposite-sex couples was no different from the traditional practice of limiting marriage to same-race couples. Both practices were a result of the social biases of a former age, from which society has since evolved.
The majority also stressed the intimate nature of a person's decision on whom to marry, finding that this decision falls within a realm of personal privacy, which the government must respect. "Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make." Id. at 12. Indeed, the Court has noted it would be contradictory "to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." Id. at 13 (quoting Zablocki v. Redhail, 434 U. S. 374, 384 (1978)).
While the central theme of the opinion was the fundamental right to marry, the majority also held that persons who marry in one state have a right to have their marriages recognized in other states:
Being married in one State but having that valid marriage denied in another is one of "the most perplexing and distressing complication[s]" in the law of domestic relations. Williams v. North Carolina, 317 U. S. 287, 299 (1942) (internal quotation marks omitted). Leaving the current state of affairs in place would maintain and promote instability and uncertainty. For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages already have occurred—the disruption caused by the recognition bans is significant and ever-growing.
Id. at 27-28. This language seems applicable to issues other than same-sex marriage and is generally a strong declaration that the validity of a marriage depends upon the law of the state in which it was celebrated.
There were four dissents, written by Justices Scalia, Alito, and Thomas, and by Chief Justice Roberts. The Scalia and Thomas dissents are perfectly consistent applications of the jurisprudence of the authors. This passage from Justice Scalia's dissent is typical:
[W]e need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.
Scalia Dissent at 4. If one believes that constitutional rights are defined by the original intention of the drafters, as Justices Scalia and Thomas generally do, then there cannot be a constitutional right to same-sex marriage in 2015, as none existed in 1868. But a majority of the justices reject this form of strict originalism.
The more interesting dissent is that of the Chief Justice. The Chief Justice focuses squarely on the concern this blog has expressed all along: that extension of the right to marry to same-sex persons should be a matter for the democratic process, not for unelected judges. The following passages set the tone:
Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
Roberts Dissent at 2.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.
Id. at 3.
The majority responds to the democracy argument partly by insisting that the right to marriage is fundamental, and democracy cannot deny fundamental rights. But this argument misses the entire point that the people should normally be the ones deciding whether a right is fundamental in the first place. Can unelected judges now decide that any right they favor is fundamental? As the Chief Justice notes, such a result would be deeply undemocratic.
The majority also attempts to argue that we do not need more democracy, because the debate is really over:
Yet there has been far more deliberation than [the democracy argument] acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life—state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities—have devoted substantial attention to the question. This has led to an enhanced understanding of the issue—an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.
Slip op. at 23.
The Chief Justice responded directly to this passage:
Nowhere is the majority's extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been "extensive litigation," "many thoughtful District Court decisions," "countless studies, papers, books, and other popular and scholarly writings," and "more than 100" amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers' "better informed understanding" of "a liberty that remains urgent in our own era." Ante, at 19. The answer is surely there in one of those amicus briefs or studies.
Roberts Dissent at 25.
Comparing these passages, the author would suggest that the majority missed an important point. The passage quoted above suggests that the debate is over because there has been discussion. But discussion does not decide anything. What the majority needed to do, and did not do, was to demonstrate that the people have made a decision.
And data does exist showing that a decision has been made. As this blog has noted previously, a majority of the American people support same-sex marriage. That majority is especially pronounced among younger people. The strongest response to the democracy argument is therefore not only the issue has been endlessly discussed, but that the discussion has increasingly convinced a large number of people to agree with the position taken by the majority. There is an growing consensus in America in favor of the majority's position.
Chief Justice Roberts's response to the public opinion argument would have to be that the people vote in elections, not in public opinion polls. But this is open to debate. The Supreme Court did not insist that every state had to vote on interracial marriage. Once support for interracial marriage reached a certain level, the Court held that all states were required to allow interracial marriage, even if their voters had never approved it. Loving ended debate on interracial marriage in exactly the same way as Obergefell ends debate on same-sex marriage.
The question is therefore not whether the Supreme Court can cut off debate by finding a fundamental right to marry. It clearly can and it actually has, see Loving, once support for the right is sufficiently strong.
The question, rather, is whether the support for the right to same-sex marriage is "sufficiently strong." As this blog noted previously, support at the state level has not reached the same level as support for interracial marriage in 1967. But Loving may not set the minimum standard for acceptance of a fundamental right. In the case of same-sex marriage, the right is supported by a majority of Americans, the majority is steadily growing, and given the high levels of support among young persons, the majority is very likely to keep growing.
Given levels of public support, the majority has a reasonable argument. If additional elections are held, proponents of same-sex marriage will mostly win them. The process will take longer in some states than others, but the end result is certain. Allowing the democratic process to run its course would not change the result, but it would inflict harm on large numbers of same-sex couples who wish to marry today. The effect of the majority opinion is to say, there is no real doubt about how the democratic process will end, and the benefits of additional voting does not justify delay in recognizing a right to same-sex marriage whose eventual recognition is inevitable.
The counterargument, as stated by the Chief Justice, is that "[s]tealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept." Roberts Dissent at 2. This blog has expressed similar concerns.
But it matters in the author's mind that increasing recognition of same-sex marriage has not left the country in turmoil. Pre-Obergefell federal decisions have not caused great political outrage, outside of the extreme right wing. Many Republican commentators are urging the party to accept same-sex marriage. For example, conservative blogger Jennifer Rubin notes that same-sex marriage is increasingly popular among younger Republicans, and notes that "even among those who oppose gay marriage [many] seem to understand that they have lost the argument." (Rubin's emphasis.)
The argument that more elections would make change easier to accept is somewhat inconsistent with the fact that change is mostly being accepted without difficulty.
While the Chief Justice's concerns about the democratic process are legitimate, at times he takes those concerns too far. For instance, he insists with surprising vigor that the majority's reasoning could be used to support a fundamental right to polygamy. This conclusion is plainly wrong, as there is little if any public support for such a right. The majority is not inventing fundamental rights out of thin air; it is recognizing a fundamental right that has been discussed intensely for 10 years, been accepted by judges and voters in a number of states, and has strong and growing support among members of the public.
The Chief Justice also expresses fear that the Court will constantly repeat in future cases the same sort of reasoning employed by the majority. He invokes the memory of numerous Supreme Court decisions very aggressively striking down legislation under Lochner v. New York, 198 U. S. 45, 76 (1905), on the basis that the judges did not like the laws in question and preferred a very expansive reading of private contract rights.
Yet there is very little risk that Obergefell will turn into Lochner. The key point, again, is that the fundamental right recognized in Obergefell has broad and growing support, among commentators, among courts, and among the people. The majority should perhaps have relied more upon actual public support, and less upon mere public discussion. But the fact remains, Obergefell is following public opinion, not leading it.
There is strong reason to suspect that the reasoning of Obergefell will be confined within very limited bounds. There is not much chance that the majority will start recognizing a fundamental right every time it disagrees with Congress or a state legislature. Obergefell will be applied only in a small number of situations in which an historic movement for social justice, with strong and growing public support, seeks to reverse a longstanding injustice on an issue fundamental to American society. The author cannot imagine an area, other than same-sex marriage, in which these requirements are met. Obergefell will probably not be applied outside the area of same-sex marriage.
Finally, the author admits that Chief Justice Roberts's vote surprised him. Roberts has shown a tendency to be protective of the Court's reputation, most notably in his reluctance to allow the Supreme Court to block President Obama's controversial health-care reforms. Given current trends, it seems highly likely that within the next decade or two, same-sex marriage will be accepted and noncontroversial. In the sea of public opinion, opposition to same-sex marriage is a sinking ship. It is somewhat surprising to see the Chief Justice tying himself to the mast.
Yet in addition to his concern over the image of the Court, the Chief Justice is perhaps the Court's leading advocate of judicial restraint. While Obergefell is almost certainly limited to same-sex marriage, its reasoning is certainly not restrained. It appears that the Chief Justice's strong belief in judicial restraint overcame any concern he might have had over how his dissent will be viewed in the future. Again, one is led to wonder whether the result might have been different if the majority had placed more weight on public opinion, and less weight upon mere discussion.
Finally, Justice Alito's dissent echoes many of the Chief Justice's points, focusing more upon the democracy issue and less upon originalism. Alito expressed more open concern that same-sex marriage may be harmful over the long term, and he therefore seems to disagree more substantively with the majority's concern for the welfare of same-sex couples.
How Obergefell is seen in 20 or 30 years will depend heavily upon the future actions of many same-sex married couples. The author suspects strongly that same-sex marriage will fare about the same as opposite-sex marriage. Many couples are likely to embrace it, some more successfully, others less successfully. (As cynics have observed, homosexual persons have the same fundamental right to be miserable in their marriages as heterosexual persons.) But it is doubtful that same-sex marriage will pose any serious harm to the social fabric of the country. If this is true, the majority opinion in Obergefell will probably age much better than the dissents.
