Obergefell v. Hodges: Lots of Noise; Not Much Law

by Carrie Severino

Today the Supreme Court handed down a landmark decision that finds in the Constitution a requirement that all states change their long-held definitions of marriage to include same sex couples.  The decision was a blow for the democratic process and federalism as it overturned state laws and constitutional provisions nationwide. 

The Court’s reasoning, if that is the proper term for what it said, is utterly conclusory.  Citing the fundamental nature of marriage in this country, it purports to intuit four abstract principles about what marriage really means by name-checking a series of cases and declaring that they stand for propositions invented by the majority. It then declares that none of these principles – even, amazingly, the right to procreation – has anything to do with the opposite-sex nature of marriage.  The fact that previous cases discussing this right (with the exception of Kennedy’s previous tour de farce in U.S. v. Windsor) all presume that marriage was by definition an opposite-sex union is summarily dismissed.  Essentially, those were the bad old days when a benighted nation, including Barack Obama and Hillary Clinton, didn’t know any better. 

The decision is so caught up in the excitement of announcing these new rights that it seizes on every available rationale.  Not only is there a belt and suspenders — both due process and equal protection — but the Court throws in a bonus win for petitioners on the recognition question, which was effectively moot now anyway since all states are required to change their marriage laws. 

Let’s not pretend that this is a surprise, though. By the time the case was argued it was practically a foregone conclusion how the Court would rule.  The biggest question, particularly following Justice Alito’s telling exchange with the Solicitor General, was going to be whether today’s decision signals the end to America’s strong commitment to religious liberty.

Kennedy’s opinion does throw a bone to those who are concerned that this decision may trigger a new wave of intolerance against those with sincerely-held beliefs that contradict the new orthodoxy. He affirms the right to “advocate with utmost, sincere conviction” their beliefs about marriage.  He assures us that “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  So religious individuals can stay in opposite sex marriages if they like (whew!) and can teach and even debate their position.  This is all well and good, but it remains to be seen whether it goes far enough.

Chief Justice Roberts thinks it doesn’t.

He raises serious questions about what type of protection for religious liberty the majority contemplates when it eschews the actual constitutional phrase “exercise of religion” for a discussion of mere “belief” and “teaching” of religion.  He also points to the “hard questions” courts will have to resolve in light of today’s decision that stand to threaten religious institutions and individuals with loss of their nonprofit tax status, loss of their livelihood, and the loss of the rest of their ability to actually exercise their religion. 

The Chief’s dissent, joined by Justices Scalia and Thomas, hits the nail on the head about the opinion’s main holding as well.  He explains why the majority’s opinion is legally bankrupt: “Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Claus gives same-sex couples a fundamental right to marry because it would be good for them and for society.”  It also includes discussion of the danger of judges who arrogate unconstitutional power to themselves: “The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down dem­ocratically enacted laws, they do so based on something more than their own beliefs.” 

The other dissents, though shorter, were no less forceful. 

Justice Scalia penned a scathing dissent joined by Thomas and focused on the “threat to American democracy” arising from today’s decision.  “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”  His critique is devastating and will surely be remembered for its new revolutionary battle cry, “No social transformation without representation!”

Justice Thomas’ dissent dismantles the notion of substantive due process, as well as the majority’s attempt to apply it in this case.  He is particularly eloquent in distinguishing the classical understanding of negative liberty – “freedom from governmental action” – from the majority’s assertion that liberty can be found through “an entitlement to governmental benefits.”  This inversion perilously suggests that both liberty and dignity, rather than being innate, flow from the Government itself. 

Justice Alito raised serious concerns that the majority’s decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy” by comparing traditional marriage laws to laws enshrining racism or sexism.  And he echoed the other justices’ concerns about today’s massive power-grab for the courts:  “If a bare majority of Justices can invent a new right and im­pose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.”

We can hope that those on both side of today’s decision can agree on one thing: that we do need a culture of tolerance so that Americans are free to express and live their beliefs, including those beliefs that touch on marriage.  The First Amendment requires no less.

Bench Memos

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