The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others.

But before addressing Chief Justice Roberts’ dissent in more detail, I will provide a summary of the Court’s majority opinion. The majority opinion bases its holding primarily on Fourteenth Amendment substantive due process, affirming marriage between two people, whatever their sexual orientation, as a fundamental liberty right.

The Court began by providing some history on the primacy of marriage to society and family, acknowledging that the historical understanding has been that marriage was between one man and one woman. While respondents, Justice Kennedy writes, believe this history “should be the end [of these cases],” Justice Kennedy says this “history is the beginning” (slip op at 4). “[I]t is the enduring importance of marriage that underlies the petitioners’ contentions,” Justice Kennedy writes, and petitioners’ “immutable nature dictates that same-sex marriage is their only real path” to enjoy the “profound commitment” of marriage (slip op at 4).

While marriage has been considered from society’s beginnings a central societal institution, Justice Kennedy reminds us that it has changed over time. In fact, “[t]he history of marriage is one of both continuity and change” (slip op at 6), even when we examine it as between opposite-sex couples. (And here we see a bit of Justice Ginsburg coming through.) For centuries, marriage was more about family and social ties, not love. Families arranged marriages between their children based on “political, religious, and financial concerns” (see slip op at 6). By the time of the country’s founding, marriages were largely considered voluntary contracts (though it’s probably fair to say that even then and thereafter, families wielded much influence on who married whom likely for some of the reasons quoted above). Even though marriages were considered voluntary contracts, women in those marriages lost their individual rights because of the law of coverture. A married woman became one with her husband; “a married man and woman were treated by the State as a single, male-dominated legal entity” (slip op at 6). Coverture was abandoned as women gained legal, political, and property rights.

These changes, the Court says, “were not mere superficial changes. Rather, they worked deep transformations in [marriage’s] structure, affecting aspects of marriage long viewed by many as essential” (slip op at 6-7). But, the Court says, these changes strengthened, not weakened marriage.

Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process (slip op at 7).

Such has been the case with LGBT rights. Homosexuality was considered a psychiatric disorder until 1973, and same-sex intimacy had been criminalized until well into the 20th century. Only in more recent years has the psychiatric field (and others) recognized “that sexual orientation is both a normal expression of human sexuality and immutable” (slip op at 8).

Beginning in the mid-1990s, various state courts and legislatures, and Congress itself, began cordoning off marriage as a union between only one man and one woman. Some states, though, began shifting away from the traditional one-man/one-woman marriage dyad, either through their legislatures or courts. (See slip op at 7-10, detailing history of legality of same-sex intimacy.) The majority opinion contains appendices that comprehensively list the cases and legislative acts that either address or legalize same-sex marriage. (See slip op at 29-34.)

Thus, in the latter couple of decades of the 20th century and into the 21st, same-sex couples saw many legislatures and courts openly deny them the right to marry—a right they saw as basic and fundamental—while in some cases throwing them crumbs by way of allowing “civil unions” or “domestic partnerships,” gestures that, while better than no recognition, surely accorded their relationships secondary status, if they were lucky enough to live in a state that allowed even those.

The majority’s opinion is, as I said earlier, grounded in the Fourteenth Amendment’s Due Process Clause. As the Court has held in previous cases, the liberties protected by the Constitution extend beyond those specifically enumerated in the Bill of Rights and include “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs” (slip op at 10). And, the Court continues, it is “an enduring part of the judicial duty to interpret the Constitution” to identify and protect those fundamental rights—and requiring the states to protect them (slip op at 10). The Court explains that identifying fundamental rights does not depend on a set formula, but requires it “to exercise reasoned judgment,” including examining history and tradition, but, says Justice Kennedy, history and tradition “do not set [the] outer boundaries [of the inquiry]” (slip op at 10-11).

The right to marry, although not specifically listed in the Bill of Rights or the Constitution, has long been held as protected as a fundamental right, though precedent has dealt solely with opposite-sex couples. The Court gives four “principles and reasons” that show why “marriage is fundamental under the Constitution” and why such principles and reasons “apply with equal force to same-sex couples” (slip op at 12). Those four principles and reasons are as follows: 1) “the right to personal choice regarding marriage is inherent in the concept of individual autonomy” (slip op at 12); 2) “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals” (slip op at 13); 3) marriage “safeguards children and families and thus draws meaning from related rights of childbearing, procreation, and education” (slip op at 14); and 4) the “Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order” (slip op at 16). (See slip op at 12-17 for more detail on each principle and reason.)

The Court finds no basis to conclude that these principles and reasons cannot and do not apply to same-sex couples. To exclude such couples, the Court says, “impose[s] stigma and injury of the kind prohibited by our basic charter” (slip op at 18).

To respondents’ claim that the petitioners wanted not the right to marry, but “a new and non-existent ‘right to same-sex marriage,’” the Court dismisses the idea that the Due Process Clause requires such specificity. For example, the Court notes, Loving v. Virginia “did not ask about a ‘right to inter-racial marriage’” (slip op at 18). Rather, Loving (and other marriage cases) were about “the right to marry in its comprehensive sense” (slip op at 18).

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 right once denied. This Court has rejected that approach . . . . (slip op at 18).

While the Court’s opinion rests on the Due Process Clause, it also identifies a Fourteenth Amendment equal protection basis for petitioners’ claims. The Court in essence combines the equal protection analysis with the due process analysis, noting a “synergy” between the two:

In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. . . . This interrelation of the two principles furthers our understanding of what freedom is and must become (slip op at 19).

After a discussion of some of the marriages cases like Loving and Zablocki v. Redhail, and explaining how even though coverture was eliminated “invidious sex-based classifications in marriage remained common through the 20th century,” the Court said “the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution” (slip op at 21).

In Part IV of the opinion, the Court directly addresses some remaining arguments and concerns. First, the Court addresses the respondents’ concern that “there has been insufficient democratic discourse” (slip op at 23) on the definition of marriage. In response, the Court noted that there has, in fact, been considerable discussion and debate on the issue. There have been “referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings” (slip op at 23). As well, there have been many cases in both state and federal courts, each accompanied by briefs of the parties and any number of amici briefs.

Second, the Court acknowledges that “democracy is the appropriate process for change,” but it is only “so long as that process does not abridge fundamental rights” (slip op at 24). When fundamental rights are involved, “‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decisionmaking” (slip op at 24 (quoting Schuette v. BAMN)). And, says the Court, “[t]he 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 them as legal principles to be applied by the courts” (slip op at 24 (quoting West Virginia Bd. of Ed. v. Barnette)). Marriage is a fundamental right; thus, the issue is for the Court.

Third, the Court emphasizes that those who “adhere to religious doctrines[] may continue to advocate” their convictions that “by divine precepts[] same-sex marriage should not be condoned” (slip op at 27). The First Amendment allows them that right and protects them. It also protects the exercise of their religion: the decision does not demand any religion to perform or recognize a same-sex union (though some have said they will). Further, any individual so opposed is not required to personally enter into such a union.

Thus, the Court holds that “same-sex couples may exercise the fundamental right to marry in all States”; as well, in order to protect same-sex couples who have legally married in one state from having the legality of their marriages (and their attendant rights) appear and disappear as they cross state lines, the Court held “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character” (slip op at 28).

Each of the four dissenting justices—Chief Justice Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas—issued opinions. Justices Scalia and Thomas joined Chief Justice Roberts’ dissent as well as each other’s dissents and Justice Alito’s dissent. Neither Chief Justice Roberts nor Justice Alito joined any other dissents. I want to focus on Chief Justice Roberts’ dissent; however, a few words about the other dissents are warranted.

First, Justice Scalia is nothing if not consistent. His dissent (a surprisingly short nine pages) contains the kind of over-the-top often acerbic rhetoric we’ve come to associate with him. One of the more colorful parts is tucked into parenthetical language on page 8:

And if intimacy is [a freedom], one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say” (Scalia dissent, slip op at 8).

His main point, though, is that “a select, patrician, highly unrepresentative panel of nine” (Scalia dissent, slip op at 6) is not the institution to decide a policy question such as same-sex marriage. Allowing the Court to resolve such a question “violate[s] a principle even more fundamental than no taxation without representation: no social transformation without representation” (Scalia dissent, slip op at 6).

Second, Justice Alito’s dissent also addresses the Court’s role in determining the answer to a question he believes better answered, if at all, by the states. He further claims that the traditional understanding of marriage is not the couple-centered one of today; instead marriage has been “inextricably linked to the one thing that only an opposite-sex couple can do: procreate” (Alito dissent, slip op at 4). He acknowledges that this traditional understanding may not “ring true” today because “the tie between marriage and procreation has been frayed” (Alito dissent, slip op at 4), but, he says, States can, if they desire, adhere to the traditional understanding in order to not “contribute to marriage’s further decay” (Alito dissent, slip op at 5), and States can, if they desire, refuse to recognize same-sex marriages. This “system of federalism . . . provides a way for people with different beliefs to live together in a single nation” (Alito dissent, slip op at 7).

Third, Justice Thomas weighs in with a rather bizarre dissent. He eschews substantive due process, an interpretation he claims “distorts the constitutional text” (Thomas dissent, slip op at 2) because the text itself provides for only procedural due process. However, Justice Thomas continues, even assuming there was such a thing as substantive due process, one must identify a deprivation of “life, liberty, or property”; “liberty,” says Thomas, is no more than, basically, physical movement. (Thomas dissent, slip op at 4-7). (Because Justice Scalia joined this dissent, that means that two justices would eschew substantive due process rights, which translates, in this context, into no right whatsoever to marry. By this logic, a state could set any kind of limit on marriage, like, say, limiting marriage to only fertile couples under the age of 55.)

The most interesting—and, to me, strangest—part of his dissent is his human dignity argument. According to Justice Thomas, “[h]uman dignity has long been understood in this country to be innate” (Thomas dissent, slip op at 16); the government does not bestow it. Thus, “[t]he 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” (Thomas dissent, slip op at 17). Anna High further dissects Justice Thomas’ dignity argument here.

This brings us, finally, to Chief Justice Roberts’ dissent. Before I get into the substance, I want to note some writing and style aspects of the Chief Justice’s opinion that without a doubt added to its persuasive value. Aside from drafting clear and concise prose and well-ordered arguments, the Chief Justice does two other important things: he acknowledges (often, in fact) the strengths of the other side and he keeps the insults to himself, two techniques I’ve mentioned here as being ways to persuade especially those who don’t want to be persuaded. And in a case like this one, I would be one of those who’d resist being persuaded by this side of the argument.

But I could not help but be drawn in by the opening lines of Chief Justice Roberts’ dissent:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex (Roberts dissent, slip op at 1-2).

Yes, I say to myself. Yes, petitioners do make strong arguments! And then, immediately after that paragraph, the Chief Justice lowers the boom in a short, concise sentence: “But this Court is not a legislature” (Roberts dissent, slip op at 2). Um, true. And now I have to keep reading because I need to see how this opinion goes. I’ve agreed with him so far; will I agree with him to the end?

Chief Justice Roberts clarifies that his dissent is not about his own personal opinion on whether marriage can or should be between two people of the same sex, but rather is about whether the decision to make it so should rest “with the people acting through their elected representatives” or “with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law” (Roberts dissent, slip op at 3). For Roberts, the answer is clear: it rests with the people.

In the first part of his dissent, Chief Justice Roberts agrees “the Constitution protects a right to marry and requires States to apply their marriage laws equally” (Roberts dissent, slip op at 4). For him, “[t]he real question . . . is . . . who decides what constitutes ‘marriage’?” (Roberts dissent, slip op at 4). He then explains the long history of marriage as an institution between one man and one woman, quoting Blackstone, Locke and even Noah Webster as defining marriage in that way. (Roberts dissent, slip op at 4-9.) And while he agrees with the majority that “some aspects of marriage have changed over time,” what did not change was the “core structure of marriage as the union between a man and a woman” (Roberts dissent, slip op at 7-8). At least, this did not change until more recently. In the last several years more and more states enacted laws that revised the definition of marriage to include same-sex couples, and public opinion also moved in that direction. Nonetheless, these changes were at the state level, which in Chief Justice Roberts’ view is where they belong.

The second part of the dissent takes on the substantive due process argument, where Chief Justice Roberts likens the majority opinion’s logic to the now “discredited” Lochner v. New York. Roberts does not, like Justice Thomas (and presumably Justice Scalia), dispute there is a concept such as substantive due process, but maintains that substantive due process rights are quite strongly rooted in history and tradition, and that when the Court is asked to examine “fundamental rights” that are not enumerated in the Constitution, the Court must do so very cautiously and carefully. He compares the majority reasoning in this case to the majority reasoning in Lochner, and examines Lochner’s aftermath—the Court’s proclivity to striking down laws as violations of liberty interests over vigorous dissents. Chief Justice Roberts notes that “empowering judges to elevate their own policy judgments to the state of constitutionally protect ‘liberty,’” as Lochner and its progeny allegedly did, makes the Court appear a “‘legislative chamber’” (Roberts dissent, slip op at 13 (quoting Judge Learned Hand from 1958)).

To avoid a Lochner­-esque revival, Chief Justice Roberts says, the Court must exercise “judicial self-restraint” (Roberts dissent, slip op at 13, quoting Collins v. Harker Heights). The pre-eminent modern case on this standard is Washington v. Glucksberg, where Chief Justice William Rehnquist stated that fundamental rights must be “‘objectively, deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed’” (Roberts dissent, slip op at 13-14 (quoting Washington v. Glucksberg)). Chief Justice Roberts tells us that the majority doesn’t give us this background and it doesn’t because, he says, what the majority does it in its opinion “breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.” (Roberts dissent, slip op at 15).

For Chief Justice Roberts, then, that “marriage is desirable and petitioners desire it” is simply “not relevant,” at least “[a]s a matter of constitutional law” (Roberts dissent, slip op at 15). In his view, none of the marriage cases support petitioners’ point because those cases are about specific restrictions on the right to marry as marriage has been traditionally defined, not “about a right to make a State change its definition of marriage” (Roberts dissent, slip op at 16).

And the idea of changing the definition of marriage is where Chief Justice Roberts gets into the polygamy argument. Given the majority’s opinion, which Chief Justice Roberts views as changing the definition of marriage, he muses whether states can even maintain the definition of marriage as between two people. He says:

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. (Roberts dissent, slip op 20).

He then applies the majority’s logic for same-sex marriage to plural marriages: would there not be “dignity” in such a bond? Would not the children of such marriages benefit from their parents being married? Would not recognizing such marriages accord respect to such relationships? It’s difficult to not agree with him on this point.

In the third part of his dissent, Chief Justice Roberts takes the majority to task for its failure to “seriously engage” with the equal protection claim. He points out, correctly, that the majority opinion does not set forth the usual recitation of the equal protection standard and does not even apply such a standard. Instead, he says, the majority’s reasoning on this claim is “difficult to follow” and “conclusory” (Roberts dissent, slip op at 23-24).

In the fourth and final part of his dissent, Chief Justice Roberts spends some time criticizing the Court for its role “in delivering social change” (Roberts dissent, slip op at 24). Questions of social policy, he claims, are not for the Court, a panel of unelected lawyers. Such questions are for the people through the democratic process.

When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate (Roberts dissent, slip op at 26).

But when the people are stripped of that power, “they know it” (Roberts dissent, slip op at 26). And not only do they know it, some (maybe many) of them resent it. This resentment leads to discontentment—with the ruling, and with the Court.

There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide (Roberts dissent, slip op at 27).

We’ve seen this before, Chief Justice Roberts says. Here he refers to Justice Ginsburg, who noted regarding women’s rights and abortion that “‘judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict’” (Roberts slip op at 27, quoting Ginsburg, 63 N.C. L. Rev. 375 (1985)). Touché.

While the Chief Justice keeps insults to himself, he apparently isn’t above a little passive-aggressive play: on seven or eight occasions, he uses quotes from opinions or articles authored by Justice Kennedy against Justice Kennedy’s own reasoning. Two particularly effective uses are on page 4 and on page 24 of his dissent. First, Chief Justice Roberts quotes from Town of Greece v. Galloway, written by Justice Kennedy, when he says, “Even if history and precedent are not ‘the end’ of these cases, ante at 4, I would not ‘sweep away what has so long been settled’ without showing greater respect for all that has preceded us” (Roberts dissent, slip op at 4, quoting Town of Greece v. Galloway).

Second, and perhaps most effective, is on page 24, where Chief Justice Roberts begins part IV of his dissent with a quote from Justice Kennedy’s concurrence in Republican Party of Minn. v. White: “The legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments’” (Roberts dissent, slip op at 24, quoting Republican Party of Minn. v. White).

Though the Chief Justice cites back to Justice Ginsburg once, he does so in the politest of ways, introducing her as a “thoughtful commentator” (see Roberts dissent slip op at 27). In contrast, none of his citations to Justice Kennedy appear with such an introduction.

Yet Roberts’ dissent has a certain appeal. Of the four, it is the most reasoned (and reasonably tempered). He calls the majority on the carpet for how it dispenses with traditional equal protection analysis, which it does. So he’s right about that. He eloquently captures what he—and many other Americans—perceive as the Court’s usurpation of a very important social question. He’s right that “[s]tealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept” (Roberts dissent, slip op at 2). Alabama Colorado, Texas and others continue to resist granting marriage licenses to gay couples. Many individuals have spoken out against the ruling and voiced their opposition to same-sex marriage generally. One man in Montana attempted Chief Justice Roberts’ “short leap” to polygamy by applying for a marriage license to marry a second wife.

But despite the dissent’s initial appeal, when one goes deeper into the text there is little that is persuasive. (Judge Posner, once again, minces no words. He called the Chief Justice’s dissent “heartless.”) Let’s start with polygamy. While Chief Justice Roberts is correct about that “short leap” logically, it’s not likely that we’ll adopt polygamy any time soon. Marriage, as we’ve come to know it (even in its “traditional” one-man/one-woman form) is about equality between each spouse in the relationship. Polygamy, especially polygyny (which is one man-multiple wives) is not. When we move from polygamy in its abstract sense to polygamy in its practiced sense, it’s usually something practiced by a select few men, thereby reducing the number of marriageable women for the rest. And where polygamy is practiced, women’s groups have tried to ban or limit it, in large part because it operates on unequal power.

Second, much of Chief Justice Roberts’ criticism of the Court’s due process analysis could easily apply to all of the unenumerated rights the Court has found. Almost always, the Court has found these rights by looking not only at “history and tradition,” but also at “new insights”—looking back as well as forward. Many times history has failed us as a people.

And that is the concern I have with Roberts’ “leave social change to the people” idea. Democracy, for all we’ve heralded it, has not always been, well, democratic. Democracy has worked often to shun or denigrate many: it has allowed slavery and, later, Jim Crow segregation; it has worked against those who spoke other languages (Germans and European immigrants in the 19th century, Latinos in the 20th); it was prejudiced against certain religions (Catholics and Jews at one time, now Muslims); it has countenanced the subjugation of women, African-Americans, and other people of color, immigrants (whether those from the early 20th century or those in the later 20th century), and, of course, LGBT people. And democracy did so because the “majority” wanted it that way.

Historically that “majority”—those representatives of the people—was nearly exclusively male and nearly exclusively white. Even now, the representatives of the people are still overwhelmingly white and male. While this is not to say that all white males share a single vision of this country, it is to say that, at least historically, the majority of such a group has not always been open to ideas and interests outside their own experiences.

At the country’s founding, the right to vote was generally limited to white men who owned land—a mere 10-16% of the population—thereby leaving out many other men. And while the Fifteenth Amendment granted the vote to African-Americans in 1870, that right in reality was meaningless because states quickly found ways to limit, directly and indirectly, African-Americans from voting. Women were barred from voting until 1920. Though the voting public now, in theory, is made up of men and women of all ages, colors, and orientations, voter turnout is often low, especially in non-presidential election years, and it will likely get lower with the implementation of voter ID laws and the recent gutting of the Voting Rights Act).

Thus, how much can we say that our representatives actually represent us? And how many of us aren’t able to make our voices heard?

Which brings me back around to the “soaring” rhetoric of Justice Kennedy’s opinion. Though I was initially wondering why the Court didn’t go more with the equal protection argument, the easier argument, I realize now the liberty interest is the stronger argument. It takes the issue out of debate, for it could be that a state may, at some point, come up with some other “compelling” justification, or at least it would try, and we’d be litigating again. And again. And again. But where a right is fundamental, the ways in which the government can affect that right are extremely limited.

Identifying fundamental rights is the Court’s job; it always has been. As Judge Posner said, “[I]sn’t the history of constitutional law the history of Supreme Court justices, often by a narrow vote, inventing new rights and imposing them on the rest of the country?” And sometimes it takes that kind of prodding from those unelected lawyers to push society forward. The Court in Obergefell v. Hodges did just that.

This Post Has 2 Comments

  1. Erik Eisenheim

    Very well thought-out analysis, Professor Mazzie! It is also highly educational, as I have not had the opportunity to read the Obergefell decision. I am quite impressed by Chief Justice Roberts’ legal writing abilities, but those abilities partially mask the same personal biases to which all humans are prone. It is also quite scary that there are justices (Scalia and Thomas) on the United States Supreme Court who do not recognize substantive due process rights.

    The only issue I would have with your analysis is the attempted logical differentiation between two-person relationships and polygamy. While it is true that polygamy is less socially desirable because power equality in such a relationship is much more difficult (if not impossible) to attain or maintain, a large number of two-person relationships suffer from the same defect. The power balance in many two-person relationships is unequal, and both parties either adjust to this shifting power dynamic, or they split up.

    I would therefore discount the dissent’s “slippery slope to polygamy” argument, because 1) it is not an issue before the court, and 2) it is irrelevant if this ruling would somehow make it easier for those in favor of polygamy to push for fundamental rights status for polygamous relationships.

  2. Alexander Kurz

    I was wondering about a potential inconsistency in Roberts’s reasoning. On the one hand, he advocates to leave social change to the legislature. On the other hand, doesn’t he have a history of subverting democracy by authoring or joining the majority opinions in cases such as Shelby County v. Holder or Citizens United v. FEC?

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