Having read today’s Obergefell v. Hodges decision, I have a few thoughts:
1) Although I am a supporter of same-sex marriage, I cannot celebrate Justice Kennedy’s majority opinion for anything other than its outcome. It is difficult to read, poorly reasoned, vague to the point of confusion, transparently opportunistic, and arrogant as hell. As Ace of Spades’s Gabriel Malor — with whom I disagree on the broad legal question — writes today, “The only word I’m coming up with for J. Kennedy’s opinion is ‘mushy.’ It’s mushy. This is [substantive due process] and [equal protection] jurisprudence? Gimme some legal principles to work with, dude.”
Good luck, Gabe, for there don’t seem to be any “legal principles” at play here at all. As Ilya Somin puts it at the Washington Post, “Kennedy’s majority opinion doesn’t clearly endorse any of the various arguments previously advanced for a right to same-sex marriage, even as it to some degree nods at all of them.” Instead, he relies up his favorite idea that if he happens to believe that a law deprives a person of their “dignity,” it can be struck down on the grounds that it violates a constitutional right.
In his dissent, Chief Justice Roberts goes even further with this critique. “Stripped of its shiny rhetorical gloss,” Roberts argues, “the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.”
“The majority’s driving themes,” Roberts concludes, “are that marriage is desirable and petitioners desire it.”
The bottom line? That the Court had an outcome to reach, and it set up the scaffolding accordingly. Is it a Due Process case? Is it an Equal Protection case? Who cares? We’re doing change, man.
2) Quite what this decision means for the future of the already egregious substantive-due-process doctrine is unclear.
In his dissent, Justice Roberts writes that “it is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process.” Indeed so. Justice Thomas seems to be especially worried by this. In his separate opinion, Thomas repeats his warning against “treating the Due Process Clause as a font of substantive rights,” and implies for posterity that if that “font” is to be tapped more extensively going forward there will be no serious limit on the policymaking ability of unelected judges. Now that Glucksberg has essentially been limited to its facts, what next?
3) Relatedly, Thomas is alarmed by Kennedy’s use of “liberty” as a core justification for his decision. The notion that there is a general constitutional right to have the government recognize your marriage, Thomas argues, is a false one. The petitioners, he writes,
claim that as a matter of ‘liberty,’ they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages — on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.
Thomas believes that this error has real consequences. “The majority’s inversion of the original meaning of liberty,” he predicts, “will likely cause collateral damage to other aspects of our constitutional order that protect liberty.” Sasha Volokh has more on this point here.
4) One of those “aspects” that Thomas fears will be damaged? The First Amendment’s conscience protections. Chief Justice Roberts notes with alarm that,
The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment, guarantees however, the freedom to “exercise” religion. Ominously that is a word that is not a word the majority uses.
Personally, I do not doubt that Justice Kennedy is sincere when he attempts to draw a line between the public and private realms. Nor, for that matter, do I think he’s waving his hands when he assures the dissenters that the First Amendment will not be implicated here. Were any related cases to come before him, I daresay he’d defend the liberty interest as it has previously been conceptualized. But Kennedy will not be around forever, and I fear that Justices Roberts and Alito are correct when they submit that, because this alternation was not achieved via legislation, we do not now know what is protected and what is not. That’s worrying.
#related#5) Given the open-ended, legally vacuous, follow-your-bliss nature of Kennedy’s majority opinion, it is difficult to imagine why polygamy won’t be next. Justice Roberts noted this in his dissent, and he was right to do so. In fact, the voices calling for exactly this are already being heard.
6) Nothing more effectively underscores the suspicion that Roberts was full of it in his King opinion than his forensic dissent in this case. Where was this guy yesterday?
7) Ultimately, very few people will care about any of these legal questions. We live in an era of outcomes and not of process. A decade hence the legal problems inherent within this decision will be as irrelevant to the public as those within Brown v. Board. That’s the world we live in.
8) This being so, the Republican party should accept this decision as final and move on. This ruling is not going to be overturned. It is not going to be rendered moot by a constitutional amendment. It is here to stay. There are other fights to fight. To this end, I recommend taking the RNC-Rubio-Graham approach, and not the Cruz-Huckabee-Walker approach.
9) I’ve seen predictions that this will become “the new Roe v. Wade.” I doubt that. Life is different than most issues. And rightfully so. If one believes that abortion is murder, one can’t “let it go.” Gay marriage does not rise to that level even now, and I am skeptical that it will in the future.
