Travis Weber, J.D., LL.M.
June 26, 2015
In a 5-4 opinion, the Supreme Court ruled in Obergefell v. Hodges that states must license same sex marriages and recognize licenses issued by other states. The decision was based on the due process and equal protection provisions of the Fourteenth Amendment.
There are two over-arching errors in this decision.
First, in reading this right into the Constitution, the Court played social policy maker instead of judge. This issue should have been left to the states, but the Court chose instead to make extensive pronouncements of social policy and create a right to same sex marriage under the Constitution.
Second, the Court overlooks huge logical gaps throughout its use of precedent and case law. All of the marriage decisions the majority relies on pertained to marriage between a man and a woman. None of them dealt with a marriage between two people of the same sex. To claim all those decisions contemplated such relationships as constitutionally protected marriages is an incredible leap in legal reasoning. However, it is more understandable when one views marriage (as the majority appears to do here) as simply an interaction between civil government and the individual (Justice Kennedy stated the institution of marriage “has evolved over time). The Court arrives at its conclusion here by viewing marriage as simply whatever man says it is; once its reasoning is divorced from God’s authority, the Court more easily appends same sex “marriage” to the view of “marriage” it believes is constitutionally protected.
If there is a silver lining to the ruling, it is that because this ruling is heavily based on due process grounds, and focused less on equal protection (and avoiding animus entirely), there could be more leeway to protect religious freedom when regulating matters related to same sex marriage.
In the majority opinion, authored by Justice Kennedy (and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court relies on its own view and judgment of the history of marriage, along with legal validation of gay rights in Bowers and Lawrence, and subsequent more recent cases, as purported precedent for its decision.
In an attempt to legitimize its reasoning and conclusions, the Court makes many social science pronouncements on marriage—such as “new insights have strengthened, not weakened, the institution of marriage” and “many persons did not deem homosexuals to have dignity in their own distinct identity.” Regardless of their accuracy, the Court has no authority or expertise to make such claims.
At one point, Justice Kennedy claims the petitioners did not intend to denigrate natural marriage. The problem is, whether they intend to or not, disrupting marriage as God intends it will eventually lead to its destruction.
The Court first held that Fourteenth Amendment substantive due process protections required states to license same-sex marriage. In the Court’s view, this right extends to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Which rights are protected by substantive due process “requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect… . That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries.”
The Court starts by recognizing that it has long protected the “right to marry”—relying on rulings in the racial, child support, and prison contexts. The Court recognized that none of these dealt with same sex marriage, and attempts to excuse itself: “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.”
At one point (which is lacking airtight reasoning), the Court basically acknowledges it is recognizing this right for the first time—yet marginalizes Glucksburg, the case governing recognition of due process rights—and proceeds to rely on four reasons for doing so:
(1) “[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy” (citing the racial, child support, and prison context). “Choices about marriage shape an individual’s destiny.” “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”
(2) Relying on Griswold, the Court claims: “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.”
(3) “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.”
(4) “Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”
Ironically, Justice Kennedy’s third point is precisely why children need a mom and a dad. The Court here relies on Pierce, a case which by no means contemplated that marriage could be anything other. And his fourth point is exactly why marriage is between a man and a woman. Calling it anything other reveals how when officials (including judges) depart from an understanding of what higher law and natural law say about mankind, their reasoning goes astray.
Throughout the majority opinion, the Court makes social pronouncements it has no authority to make. And none of the cases it relies on ever contemplated that marriage could be anything but between a man and a woman. Justice Kennedy quotes the 1888 case Maynard v. Hill, which relied on de Tocqueville to explain that marriage is “‘the foundation of the family and of society, without which there would be neither civilization nor progress.’ Marriage, the Maynard Court said, has long been ‘a great public institution, giving character to our whole civil polity.’”
Does Justice Kennedy sincerely believe that the Maynard Court, which he quotes, contemplated its holding as applying to marriages besides those between men and women? Or that that Court would view such marriages as helpful to the “social order?” Yet he proceeds to claim “[t]here is no difference between same- and opposite-sex couples with respect to [the] principle” that marriage plays an important part in the “social order.”
The Court next held that the state laws at issue also violated the Fourteenth Amendment’s equal protection provision. In its earlier marriage cases, the Court asserts, equal protection and due process grounds had been intertwined. The Court attempts to show that due process and equal protection also intertwine to protect same sex marriage in this case. The equal protection grounds are less clear and do not feature as prominently as the due process arguments in the majority opinion. At this point, the Court also expressly overruled Baker.
In his opinion, Justice Kennedy acknowledged his recent pro-democracy thinking in Schuette, but (unfortunately) did not decide to heed it:
“Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id.,at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id.,at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.”
Why, then, did Justice Kennedy decide as he did here? In essence, he appears to feel differently about private sexual matters compared to other issues; this is evident in his consideration of Bowers and Lawrence, which he discusses here. Thus, the Court denied its own reasoning (indeed, Justice Kennedy denied his own reasoning) from the Schuette case.
Justice Kennedy decides that same sex marriage will not harm natural marriage, and ends with another policy pronouncement:
“Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”
The Court concludes that its reasoning requiring states to license same sex marriages would undermine any opposition to recognizing such marriages from out of state. Thus, the Court held that states must issue same sex marriage licenses and must recognize same sex marriages performed in other states.
Here, the Court’s thinking again reveals an approach to marriage that only appears more logical (if at all) when God is removed from the picture, and is evidenced by such statements as: “It would misunderstand these men and women [the petitioners] to say they disrespect the idea of marriage.” Unfortunately, the truth that this reasoning harms marriage by removing its Author from the picture whether or not people intend to was missed here.
The Court does briefly address religious liberty concerns:
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The 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. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
While this recognition of religious liberty protections is better than nothing, it does not accurately capture a satisfactory vision of how religious liberty should be (or even currently is) constitutionally or statutorily protected. Several dissenting Justices make similar observations.
Dissenting Opinion by Chief Justice Roberts
Chief Justice Roberts wrote a dissenting opinion (joined by Justices Scalia and Thomas), noting that the majority ruling was a policy decision, not a legal decision. He observes that the changes in marriage laws over time (while changing the regulation of marriage in some respects) did not, as the majority claims, alter the “structure” of marriage as between a man and a woman.
“In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.”
He aptly pointed to Dred Scott as an example of when the Court’s view on substantive due process got out of hand and is now viewed with distain many years later.
The Chief also recognizes that the majority’s claim that marriage is restricted to “two” people just can’t logically hold up under its own reasoning, and could easily be extended to plural marriage:
“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.”
“Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”
Chief Justice Roberts then quotes Schuette, and notes that although there is still a losing side in a democratic debate, at least those people will know “that they have had their say,” unlike here, where the court has disenfranchised over 50 million Americans.
He also recognizes religious liberty issues which may arise:
“Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. 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 not a word the majority uses.”
There is more:
“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage… . There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
The Chief then takes issue with the majority’s statement that laws supporting natural marriage are demeaning; he does not like the majority’s implication that those supporting such laws wish to demean anyone. He concludes that “while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.”
Dissenting Opinion by Justice Scalia
Justice Scalia also dissents (joined by Justice Thomas) and accuses the majority of legislating, not judging.
He aptly points out that the Windsor majority blatantly contradicts itself today:
“It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”
Justice Scalia concludes with a warning:
“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Dissenting Opinion by Justice Thomas
Justice Thomas also dissents (joined by Justice Scalia), noting the danger (as evidenced today) of substantive due process doctrine—by which rights “come into being” under the Fourteenth Amendment. He argues the Framers recognized no “right” to have the state recognize same sex relationships; there is no liberty to government benefits, just liberty from adverse government action.
He continued by focusing on the threat to religious liberty this decision represents, recognizing that while this ruling may change governmental recognition of marriage, it “cannot change” the religious nature of marriage. “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”
Justice Thomas also points out the problems with the majority’s conception of religious liberty:
“Religious liberty is about more than just the protection for ‘religious organizations and persons … as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ … Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.”
“Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”
Dissenting Opinion by Justice Alito
Justice Alito also dissented (joined by Justices Scalia and Thomas), arguing that the Court’s decision is based on a flawed understanding of what marriage is, and that it takes the decision out of the hands of the people who have the authority to decide it.
He also believes this decision threatens religious liberty:
“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.”
Justice Alito recognizes that the Court now makes it impossible for states to consider how to legislatively protect conscience rights should they want to do that while at the same time legislatively authorizing same sex marriage.
“Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.”