Kennedy, Anthony - Obergefell v. Hodges

7/10/2015

No. 14-574, June 26, 2015

This is a SCOTUS decision that overturns various state prohibitions on same-sex marriage. This is undoubtedly going to be summarized more extensively and adroitly elsewhere, so I'll stick to the basic outline.

A. Author briefly discusses the institution of marriage and denies that the petitioners for same-sex marriage are seeking to devalue it. Instead, petitioners would like to take part in its privileges and responsibilities.
B. Marriage has both 'continued and changed' throughout time, most especially recently as women became equal in the marriage and laws against miscegenation were struck down. Such changes to the concept of marriage worked "deep [essential] transformations in its structure". Thus the understanding of marriage is dynamic. Author reviews the changing understanding of homosexuality as well, and then its relation to marriage. The Due Process Clause of the 14th Amendment of the US Constitution is posited to extend to "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs". While the original ratifiers of the amendment may not have known the "extent of freedom in all of its dimensions... they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning".
III. The right to same-sex marriage starts with the right to marry, protected by the Constitution, for example in Loving v. Virginia, Zablocki v. Redhail, and Turney v. Safley. Author acknowledges that the court assumed these to be opposite-sex marriages, however the "essential attributes of that right [are] based in history, tradition, and other constitutional liberties" that now must be applied to considering a proscription to same-sex marriage. This application uses four "principles and traditions" that demonstrate that "marriage is fundamental" with "equal force" to same-sex couples.
The four principles and traditions:
-Whom to marry is inherent in the "concept of individual autonomy", an "abiding connection between liberty and marriage", and part of the right to privacy.
-The right to marry is "fundamental because it supports a two-person union unlike any other in its importance to the committed individuals", and is an "intimate association".
-Marriage is a protection for children, and is therefore connected to related rights regarding childrearing, procreation, and education. These rights are protected in the Due Process clause of the Constitution, according to the precedent from Zablocki v Redhail. Author reasons that the rights of children being raised by same-sex couples need protecting by allowing same-sex marriage of the parents-- the rights of the children not to be stigmatized or suffer "significant material losses" mean that marriage for the parents must be possible.
-Marriage is the keystone of the US social order and there is "no difference between same- and opposite-sex couples with respect to this principle". Locking same-sex couples out of this "central institution" provided by the states is demeaning.

Author responds to criticism that the right to same-sex marriage is a new right, not the fundamental right to marry. Response: previous cases didn't talk about the right to interracial marriage, just the right to marry in the "comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right". Furthermore, we understand rights do not get their meaning from who had them in the past, but "rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." Here, the connection between the Constitution and the right to same-sex marriage is given by the author somewhat cryptically: "The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each my be instructive as to the meaning and reach of the other". Author does go on to show how these two clauses were used sometimes in conjunction in the precedent-building cases of Loving, Zablocki, in multiple cases involving coverture, Eisenstadt, Skinner, and Lawrence.


Roberts delivers the dissent
Roberts' main point is that the court "is not a legislature" and that the right to same-sex marriage isn't in the constitution. "The fundamental right to marry does not include a right to make a State change its definition of marriage". Thus states can stick to "the historic definition" of marriage, which Roberts argues is between one man and one woman. Roberts separately claims that the court does harm to same-sex couples by "stealing the issue" from them and not letting them convince the minds of their fellow citizens through a democratic process. Roberts argues for judicial restraint, and acknowledges that there is no serious dispute about a right to marry. The real question he asks is for the definition of marriage, and, especially, who decides on that definition.

A. Roberts argues that the term marriage only and forever has referred to one relationship: between one woman and one man. This is not a coincidence but had a background in ensuring children were raised in stable lifelong conditions. Since the US Constitution says nothing about marriage, Roberts argues the states were entrusted with questions of domestic relations, and the reference of the term marriage either "went without saying" or was understood as opposite-sex. Roberts argues that while marriage did change over time, most especially by removing coverture and bans on miscegenation, that didn't do anything to transform the fundamental "core meaning" as Kennedy argues it did.

B. Roberts give some history on the struggle for same-sex marriage in both the courts and the states and agrees with the "carefully reasoned" decision of the Court of Appeals.

II. Roberts attacks the Due Process basis for the decision, particularly the reasoning behind the Four principles and traditions. He argues this a case where the court employed "substantive" Due Process, as it did in Lochner v. New York; Roberts expressly disavows reasoning about Due Process this way and considers it judicial excess. In the pages that follow, Roberts argues that the court should not be in the business of being a kind of super-legislature, being the final arbiter of whether a law was in the public good or not (the "substantive" Due Process reading which allows this kind of error). While Roberts accepts the notion that some fundamental rights can be implied and not enumerated, his real target is the substantive Due Process and judicial excess, quoting, at one point, Kennedy himself urging the same principles (Glucksberg).

B. Roberts then goes through the majority's decision to try to show its weaknesses.

1. First is a discussion of how previous precedent-relevant cases did not change the "core definition" of marriage, as "traditionally defined".

2. Roberts takes the majority to also be arguing that the implied right to privacy links up with the right to marry to support same-sex marriage. Roberts argues there is no such connection and continues to urge for judicial restraint and seems to imply that the procreative purposes of marriage should be an guide to understanding its meaning.

3. Roberts returns to rail against the majority's decision by again comparing it to Lochner v. New York, and calling it "free-wheeling". The judicial excess that Roberts argues the majority has enjoyed is then subject to further questions, most notably: why is it only that two people can be married, under this decision? Why not plural unions?

4. Roberts dissects the majority's argument that same-sex marriage would "pose no risk of harm" to be a matter of moral philosophy, not constitutional law. The argument from the previous section is expanded: if a tradition such as opposite-sex marriage can be overruled by the court, what other social institution could be too?

III. Roberts now discusses the Equal Protection Clause as a basis for the majority decision. Roberts asks for the usual framework that uses means-ends reasoning regarding the laws and the proposed social benefits, and argues it isn't there in the majority's decision. He argues the discussion is "difficult to follow". It is here that Roberts discusses the lack of precision in the decision: he might be inclined to agree if specific harms, like hospital visitation, were being challenged.

IV. To wrap things up, Roberts rails against judicial excess as undercutting the judiciary's fundamental role and the respect it is afforded in the US. Roberts argues that this question should have been decided democratically and the court is a "blunt instrument" for "creating rights". Roberts also opens up the question of the collision of religious practice with this ruling.


Scalia also dissents

Scalia mostly discusses the loss to US democracy by the decision, and the abuse of power the court exercised. Furthermore, Scalia argues that because at the time of ratification of the 14th Amendment (which the majority argues is the basis for the right), marriage was understood as between one woman and one man, this fact alone "resolves these cases". Scalia decries that a decision that should have been legislative was made instead by a non-representative group of judges. Scalia also attacks the reasoning behind using the Due Process and Equal Protection Clauses, in an unusually sarcastic manner.


Thomas also dissents

Justice Thomas offers (in IIA1-2) a lengthy reconstruction of what the term "liberty" was taken to mean at the crafting of the US Constitution (plus amendments). Under his reading, drawing primarily from Locke, Blackstone, and the Magna Carta, "liberty" as enumerated in the 14th Amendment was taken to be freedom from external imposition on one's body-- a negative liberty. More importantly, Thomas argues that the right to liberty is a natural right, not one granted by the government. This is considered a "freedom from, not freedom to". For Thomas, to use the term liberty not as a shield against government imposition but instead as a sword to acquire new rights is backwards. The idea here is expressed thus: "Petitioners cannot claim, under the most plausible definition of 'liberty', that they have been imprisoned or physically restrained by the States for participating in same-sex relationships" (B). Thomas sees states refusing to grant same-sex marriage as in no way restricting petitioners lives, but instead it's just petitioners asking for government entitlements. Thomas needs to justify striking down anti-miscegenation laws, which he does so because slavery was "invidious" (footnote 5).

Thomas also complains about not settling this argument through a democratic method, and brings up the question of religious practices as well.

IV. Lastly, Thomas argues that while human dignity is innate and important, there is no "dignity clause" in the Constitution and no government law can deprive anyone of their innate dignity. This is where Thomas has to concede, in a weird way, that "Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved." The meaning here seems to be that the slaves still had innate dignity, even if it wasn't being recognized due to being enslaved.


Alito also dissents

Alito argues that there is no right to same-sex marriage in the US Constitution (it is left to the States) and that "liberty is a term of many meanings". Alito discusses the traditional understanding of marriage as a way to get at stable procreative relationships. Whether same-sex marriage will undermine that-- or it has already been undermined-- is not a question for the court. It is for the legislature. Alito quotes himself at length from Windsor. Alito finishes by claiming, as did previous dissenters, that the court is doing a grave disservice to its authority and the separation of powers and democracy.