I finally got around to reading all the opinions (majority and four dissents) in yesterday’s 5-4 ruling in Obergefell v. Hodges affirming the right of same sex couples to marry. The opinion went far beyond what I had hoped for and predicted, and can be considered a maximal outcome, giving same-sex couples pretty much everything they asked for and deserve, that they be allowed to exercise exactly the same marriage rights as opposite-sex couples and that this applies to all the states.
Justice Kennedy’s 28-page majority opinion was interesting. I had expressed concern earlier that during oral arguments he had seemed to oscillate between expressing concern for the deprivation of dignity that was implied by denying the right to marriage, and his seeming reluctance to have the court change what had been a long-held belief that marriage was between a man and a woman. Coupled with his strong emphasis in the Windsor DOMA decision that states had the right to decide the rules for marriage led me to think that he would not want to courts to overrule that right of the states.
I was very pleasantly surprised to be proven completely wrong. In his opinion, the right of states to define marriage as they wish played hardly any role and the dignity issue easily won out over history and tradition. He stated that the right to marry is a fundamental one and that idea of what constitutes marriage has changed with time and that allowing same-sex couples to do so was an idea whose time had come and was another step in that evolution, just like what constitutes the right to intimacy had changed with time.
He based his reasoning on four premises.
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.
He concluded that:
This analysis compels the conclusion that same-sex couples may exercise the right to marry.
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.
He rejected the tradition argument, saying that the past cannot be allowed to lock us into an unchanging mode.
If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.
He also rejected the argument that there had been insufficient public discussion of this issue and that it was something more properly decided by the will of the public exercised through the legislatures, saying that mode was the appropriate one as long as it did not abridge fundamental rights, which it did in this case.
The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish themas legal principles to be applied by the courts.” This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”
He ended with a quite moving passage.
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
Each of the four dissenters issued a separate opinion suggesting that there was some dissension amongst them in content but they all shared the quality of being quite strident, arguing that this was the death knell of democracy and that ‘the will of the people’ was being usurped by the Supreme Court.
Chief justice Roberts’s opinion (joined by Scalia and Thomas) was the longest (29 pages) and he was indignant, saying that the court had taken upon itself to grant a new marriage right rather than merely expand an existing one to a new group, and that there was nothing in the constitution that allowed them to do so. He said that the gay community had lost the “opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs”, though it is not clear why he thinks that this is a big loss.
He went on list all the other issues that could arise down the road as a result of this decision, such as plural marriages.
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.
His bitterness was evident in his final words that were classic passive-aggressive rhetoric, seemingly gracious at the beginning but ending with a slap to the face.
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution.
Scalia’s dissent (joined by Thomas) was just nine pages long and was the usual sneering at the majority for being idiots and not seeing what was to him painfully obvious. More and more Scalia comes off like a real smart-alecky jerk and his opinion was painful to read. I think the praise that he gets from the media and some legal commentators as being witty has gone to his head and now he sounds like the irritating student in class who always wants to show everyone how smart and funny he is.
His argument was that the majority opinion constituted a threat to democracy. He said that he did not care at all what constituted marriage and how it was defined and what benefits it conferred but that what he was concerned with was how those things were arrived at and the courts were not the venue. He said that the writers of the constitution did not envisage same-sex marriage and so it could not be inferred from the constitution, and that the court had no right to trump democracy by short-cutting the process by which people got to decide.
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.
I am not sure why he thinks this is so novel. The states were wrong for a long time on slavery, voting rights for women, and inter-racial marriage for many years too, so why not here?
Justice Thomas’s dissent (joined by Scalia) was 18 pages long and was also extraordinary in its claims. He basically said that the ‘liberty’ of people that the constitution protected was just limited to being free of physical restraint and did not include the right to marry.
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. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.
He said that same sex couples were not being denied their liberty at all but that what they were really seeking were governmental recognition and benefits. He also said that their dignity was not being denied either because you could never take away a person’s dignity because it was bestowed on them by god. In an extraordinary passage, he wrote:
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
Justice Alito’s dissent (joined by Scalia and Thomas) was the shortest at just eight pages. His point, like Roberts and Scalia, was that the people should have the right to decide who should be allowed to marry. He also said that the reason we are at this point is because the essential link between marriage and procreation that used to exist and limited marriage to between man and woman has frayed, with 40% of children now being born outside of marriage and this enables proponents of same-sex marriage to claim that the issue of procreation is irrelevant and that marriage is all about the couple’s relationship.
He went on to say that the majority verdict today will result in opponents of same-sex marriage being vilified and persecuted and called bigots.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
In other words, opponents will be treated the way that polite society treat bigots about other things like racism and misogyny and xenophobia today.
Ultimately this issue boils down to the fact that there is no rational or reasonable governmental interest in preventing same-sex couples from marrying. The circle of acceptance of humanity is getting larger, encompassing more and more people within it. Those who try to keep others out are rightly seen as trying to regress to a less desirable, more exclusionary state of society. And there is nothing wrong in viewing them that way.