ANOTHER DAY, ANOTHER BLOCKBUSTER;
[Posted June 26, 2015] The ink isn’t even dry on yesterday’s signal ruling in King v. Burwell; this morning, the Supreme Court issues Obergefell v. Hodges, the much-anticipated ruling on marriage equality. By a 5-4 vote, the Court reverses the Sixth Circuit and rules that states must license same-sex marriages. Justice Kennedy announces the decision of the Court; as I understand it, each of the four dissenters has written a separate opinion.
SCOTUS DECIDES OBERGEFELL
This one is going to take a while to digest, as it looks to be quite long. I’ll post analysis of it a bit later in the day. One thing I can tell you: this isn’t the partial victory that some analysts had forecast, where the Court would have required states to recognize such marriages celebrated elsewhere but stopped short of requiring them nationwide. This is an undiluted win for the proponents of marriage equality, as now all 50 states must allow the ceremony.
Okay, I’ve read all five opinions and all 103 pages. As usual, I won’t go into the level of detail that you’ll find elsewhere; for that, you can check out Adam Liptak’s analysis for the New York Times, or SCOTUSblog’s two discussions – one in “Plain English” by Amy Howe and one by courtwatcher Lyle Denniston. These will be my thoughts on some of the forest-level issues, with an occasional foray into leaves and branches.
As we’ve often seen before, Justice Kennedy maintains his role – in my eyes, anyway – as the most powerful man in American government, because when the Court is closely split, he gets to decide what American law is. Obergefell emphatically produces just such a close split, and today, as in US v. Windsor two years ago, he sides with the four liberal justices to decide the case. You’ll find his opinion to be packed with noble rhetoric, and if you happen to agree with his vote, you’ll find yourself cheering, or maybe shedding a tear of joy. If you disagree with him, the citations to lofty principles will start to get old quickly.
Kennedy begins by setting out the historical framework for the issue, noting that until very recently, no one even entertained doubt about the male-female component of a marriage. He then cites some of the same principles that decided Windsor, including the fact that same-sex-marriage bans demean the couples who just want the same rights as everyone else.
The meat of the discussion lies in the realm of due process, specifically of the substantive variety. He finds four justifications for a due-process right to marriage in this context, and understandably consigns the contrary position to the losing arguments in Loving v. Virginia, when the Court overturned our Commonwealth’s antimiscegenation statute.
He then refers to the Equal Protection Clause as a supplemental justification for his conclusion, noting that the government conveys a swarm of benefits upon spouses. He sees no legitimate basis for restricting those benefits to opposite-sex couples.
As I mention above, each of the four dissenters writes an opinion. The chief justice’s acknowledges that many Americans will cheer this news, and he refuses to throw a wet blanket on their celebration, but he warns that the path the Court took to get to this destination is a dangerous one, since in his view it puts important policy decisions in the hands of nine unelected men and women. Marriage equality may even be a good idea, and the nation is unquestionably moving toward full acceptance of it; but the Supreme Court has just blown through the façade of democratic decisionmaking and forced a single conclusion upon everyone.
The majority acknowledges this fact and has an answer for it: when a subset of our citizenry is being deprived of a right, the courts needn’t wait for the political process to carry it out; courts exist to protect the rights of minorities against the tyranny of the majority.
The chief justice compares today’s decision to the only case that he thinks can justify it – the infamous Lochner v. New York ruling, which the Court long ago abandoned. That case, too, turned on an ostensible liberty interest: the right of bakery employees to contract to work as many hours per week as they felt like. Of course, the real rationale was that bakeries wanted to get as many hours out of their employees as they could, regardless of the health consequences. The chief sees this as the reincarnation of that approach.
The next dissent comes from Justice Scalia. In my analysis of King v. Burwell yesterday, I chided Scalia for his intemperate language in dissent. Today’s opinion is more of the same; in my opinion, it’s strident and almost childish. I write this even as I acknowledge that he has an excellent legal point to make – more on that below – but he makes it in a way that turns the reader off instead of furnishing a reason to agree. Ridicule is not a substitute for reasoned argument, but Scalia has chosen to employ it twice in a row.
In this regard, I was reminded today of this passage in a book on how to convince judges: “Don’t show indignation at the shoddy treatment your client has received or at the feeble and misleading arguments raised by opposing counsel. … Ideally, you should evoke rather than display indignation.” A. Scalia and B. Garner, Making Your Case: The Art of Persuading Judges (2008) at 34.
Justice Thomas’s dissent focuses on his utter rejection of the concept of substantive due process. As he sees it, liberty means freedom from governmental oppression, not a right to governmental benefits. And in his view, the latter is what the petitioners want – the same marital privileges that heterosexual spouses enjoy. But the due process clause doesn’t convey the right to receive benefits; it prohibits the government from doing three things to you unless it uses due process of law.
Justice Alito adds many of the same points, but writes to warn of the future of judicial review if Supreme Court justices can create unenumerated civil rights merely because they find those rights to be a good idea.
A word about the Equal Protection Clause: there isn’t nearly enough discussion of it. The chief is right that Kennedy deals with it in an offhand way – “And, oh, by the way, the Equal Protection Clause helps the petitioners, too” – without engaging in serious equal-protection analysis. But the chief doesn’t exactly go through that analysis to reach the opposite conclusion, either; he summarily says that there’s a rational basis for the distinction between the two types of marriage.
That’s fine, but having read briefs on this point, I believe that this challenge calls for at least heightened scrutiny, rather than the hands-off approach that rational-basis analysis provides. No one – not one justice – really analyzes today the question whether same-sex-marriage prohibitions deny homosexual couples the equal protection of the thousand-plus legal benefits that the law confers upon spouses. This, to me, is potentially the most powerful argument on behalf of the petitioners. It is the redheaded step-child of today’s opinions.
Two years ago, when I wrote about US v. Windsor, I noted that I was glad the case came out the way it did, but I absolutely hated the path that the majority followed to get to it. In Windsor, the Court took the case even though it didn’t really have an appellant, so I didn’t think it had jurisdiction. The named petitioner, the United States, asked the Court to grant cert and then affirm. I wrote back then that I had always believed that you have to be aggrieved in order to appeal; while it’s possible to proceed without an appellee, if you don’t have an appellant, then you don’t have an appeal.
I find myself looking at Obergefell the same way. I believe that same-sex couples should be allowed to marry. The usual justifications for restricting marriage to opposite-sex couples just don’t hold up under even surface-level analysis. (For example, the rationale relied upon by the several dissents is the promotion of procreation. Under that theory, the government could prohibit a post-menopausal widow from remarrying late in life, because she could never have children. But nobody on the court thought of that, I suppose.) These people are just that – people – and they deserve the same rights and privileges that the rest of us have.
But basing this ruling upon an amorphous liberty interest and the Due Process Clause really is scary, assuming you want your legislatures instead of your judge making laws for you. The dissents harp on the fact that rights can’t be conjured up by a simple majority vote of the nine Robes; they have to have their bases in the Constitution or in statutes. Cynics have been known to complain that American law is just what five votes can agree upon – nothing more and nothing less. If that’s true, as today’s dissenters repeatedly warn, it’s very bad news for our democratic republic.