Law & the Courts

Obergefell’s Toxic Judicial Legacy

Supreme Court Justice Anthony Kennedy (Reuters photo: Joshua Roberts)
With Justice Kennedy’s sanction, anything a judge thinks is a good idea can be declared a fundamental right.

Does the Constitution grant individuals a judicially enforceable right to order the government to combat climate change? Does it contain a right to engage in “BDSM sexual activity”? What about a right to assisted suicide? Unfortunately, these are no longer fanciful hypotheticals. Thanks to Justice Kennedy, cases alleging such rights are currently being litigated and are coming soon to a courthouse near you.

The cultural, legal, and political consequences of establishing a right to same-sex marriage have dominated discussions regarding Justice Kennedy’s Obergefell decision. Will religious institutions that oppose same-sex marriage lose their tax-exempt status? What will happen to vendors whose consciences prohibit them from participating in same-sex weddings? How and when will schools address same-sex marriage? Those consequences are important and merit serious discussion. However, another aspect of the case — Justice Kennedy’s instructions regarding judges’ authority to create new “rights” — will prove equally important in the long run.

In Obergfell, Justice Kennedy did far more than merely discover a constitutional right to same-sex marriage. He wrote that judges have an ongoing “duty” to identify and protect new “fundamental rights.” He maintained that judges should institute new rights whenever their “reasoned judgment” suggests that it is appropriate to do so.

Previously, a Supreme Court precedent titled Washington v. Glucksberg held that judges could recognize constitutional rights only if they were “deeply rooted in” American “history and tradition.” Justice Kennedy dismissed this standard as unduly constraining judges’ power.

This has predictably motivated plaintiffs to demand that judges read inventive new rights into the Constitution. Unless and until the Supreme Court curbs Obergefell’s invitation to create new constitutional rights, self-imposed judicial restraint is the only thing preventing a deluge of new “constitutional rights.” And there are indications that the dam is already starting to crack.

A case titled Juliana v. United States presents an ominous warning as to what lies ahead. A district-court judge in Oregon used Obergefell’s license to fashion a new individual right to a “climate system capable of sustaining human life.” The judge adopted Justice Kennedy’s “reasoned judgment” standard and wrote, “Exercising my ‘reasoned judgment,’ . . . I have no doubt that the right to a climate system capable of sustaining human life” is a fundamental constitutional right.

The plaintiffs argued that various government officials violated the Constitution by “causing atmospheric CO2 levels to rise” and “knowingly endangering Plaintiffs’ health and welfare by approving and prompting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion.” They urged the court to order the government to stop violating their constitutional right to a healthy environment and to require it to “develop a plan to reduce CO2 emissions.”

This sounds like a plainly political rather than constitutional question, but under Obergefell’s amorphous “reasoned judgment” standard, anything is possible. The judge explained that under Obergefell, the creation of “new fundamental rights” is not “out of bounds.” The case is ongoing, but the district-court judge has already recognized the existence of the “constitutional right” in question.

It would be comforting to view Juliana as an isolated aberration, but similar events have unfolded in other courts. The common thread in every case is a citation to Obergefell.

In Hodges v. Schmidt, an appellate court in Kansas cited Obergefell while establishing a right to abortion in Kansas’s constitution. The plaintiffs challenged an abortion restriction under the state constitution, and not under the federal constitution. This required the court to determine, for the first time, whether the Kansas constitution contained its own right to abortion.

The court admitted that “the framers of the Kansas constitution . . . surely did not intend to create an abortion right in 1859, when the constitution was adopted.” However, the court found that it had the power to find new constitutional rights “unforeseen” to the drafters of their state constitution. The court was emboldened to make this claim because, as it explained, the Supreme Court “clearly embraced this notion of constitutional interpretation in its Obergefell opinion.”

The Kansas court understood Obergefell to mean that “the rights of Kansas Women in 2016 are not limited to those specifically intended by the men who drafted our state’s constitution in 1858.” The reasoning in Obergefell is wrong, but the Kansas court’s understanding of its implications is not.

The court applied this newfound right to enjoin a ban on a specific type of second-trimester abortion. The court’s “reasoned judgment” led it to prevent Kansas from enforcing a law that, by its own description, “forbids dismemberment only when it involves ‘a living unborn child.’” Many Kansans may question how reasoned judgment could possibly support such a conclusion. Unfortunately, Obergefell tells such ordinary Kansans to keep quiet because judges have spoken.

The Hodges case was decided by an evenly divided court with seven judges in the majority and seven in dissent. It did not require a majority of the people of Kansas, or even the court deciding the case, to effectively amend the state’s constitution to prohibit laws banning the “dismemberment” of “a living unborn child.”

The dissenting judges would have applied a “textual and historical approach” to discover the meaning of the Kansas constitution rather than replacing that meaning with their own reasoned judgment. These judges believed that “the question we need to ask . . . is not what rights today’s judges would like to see in our state constitution.” “The proper question to ask,” they claimed, is what rights the people who drafted and adopted the constitution actually protected. Regrettably, Obergefell sides with the majority’s view of judicial preeminence.

In Morris v. Brandenburg, a district-level judge in New Mexico discovered a fundamental right to assisted suicide in New Mexico’s constitution — the very “right” that the United States Supreme Court refused to recognize in Glucksberg.

A district-level judge in New Mexico discovered a fundamental right to assisted suicide in New Mexico’s constitution — the very ‘right’ that the United States Supreme Court refused to recognize in Glucksberg.

The New Mexico appellate and supreme courts reversed this judgment. However, a dissenting appellate judge would have relied on Obergefell to uphold the lower court and enshrine a right to assisted suicide in the state constitution. The dissenting judge emphasized that Obergefell had rejected a “rigid historical analysis,” instructing judges to rely on their own “reasoned judgment” instead.

In Doe v. Rector & Visitors of George Mason Univ., the plaintiff, a student expelled from the university, claimed that he had a constitutionally protected right to engage in “BDSM sexual activity.” The judge recognized that these arguments would have been futile under the Glucksberg framework because “there is no basis to believe” that a right to BDSM “is deeply rooted in the nation’s history.” However, he concluded that the plaintiff’s argument merited further analysis following Obergefell.

The judge eventually decided that, even under Obergefell, there is no constitutional right to BDSM. Unlike the clear-cut Glucksberg analysis, the judge had to consider and balance a range of factors in reaching this conclusion. Making such determinations is more appropriately the job of a legislator than of a judge. One wonders whether the judges who decided Hodges or Juliana would have reached the same conclusion.

A district-court judge in Nevada recently stated that Obergefell had “reinvigorated” a “long discredited” method of constitutional interpretation that was “the closest thing of which the Court is aware to a federal judicial power to strike down a state law based on a federal court’s own notions of good policy.” Such power is too awesome for any small group of individuals in a republic to wield responsibly.

Obergefell was decided in 2015, and the examples listed above are only a few of the cases in which plaintiffs have already used its reasoning to request the recognition of new constitutional rights. Other rights alleged by plaintiffs have included “the use, possession, manufacture, or delivery of marijuana” and “freedom in action,” which would include “possession of an unsealed container of alcohol in public.” Unless something changes, such claims will continue to proliferate, and it’s impossible to predict which rights will satisfy a particular judge’s “reasoned judgment.”

Entirely apart from the question of same-sex marriage, the Supreme Court should act quickly to reverse course and restore the Glucksberg standard for finding new fundamental rights. As Justice Kennedy himself noted in Schuette v. Coalation to Defend Affirmative Action, the sensitive, important, or contentious nature of some policy questions “does not justify removing certain court-determined issues from the voters’ reach.” “Democracy does not presume that some subjects are either too divisive or too profound for public debate.” The default rule in a democracy ought to be that the people, and not the courts, get to decide.

— Howard Slugh is an attorney practicing in Washington, D.C.


Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.


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