Today marks the beginning of the United States Supreme Court’s 2015-2016 Term, and coincidentally it also marked my participation in an annual event at the Marquette University Law School entitled “Supreme Court Roundup.” Along with Cato Institute Scholar and Supreme Court expert Ilya Shapiro, I was invited by the Law School Chapters of the Federalist Society and the American Constitution Society to share my perspective on three cases from the Supreme Court’s docket last year. The cases we discussed included Obergefell v. Hodges (the “Gay Marriage case”), King v. Burwell (the “Obamacare case”) and Yates v. United States (the “fish case”). Thanks to the law students for the invitation and a special thank you to Mr. Shapiro for his participation. What follows are my prepared remarks on the Obergefell case.
I call this case “Thurgood Marshall’s Revenge.”
In Obergefell v. Hodges, the Supreme Court held that state laws denying marriage licenses to same sex couples violated the Equal Protection Clause of the United States Constitution.
Justice Kennedy’s majority opinion in Obergefell is notable for what it does not talk about. The majority opinion does not rely upon the theory that marriage is a fundamental right and that therefore state laws infringing upon the right to marriage must be subjected to strict scrutiny. Nor does the majority opinion rely upon the theory that homosexuals are a suspect class, thereby subjecting state laws that treat homosexuals different than heterosexuals to strict scrutiny under the Equal Protection Clause.
The methods by which the Court has traditionally determined whether to apply heightened standards of review to legislative acts – strict scrutiny, intermediate scrutiny, heightened rational review – are what are known as “heuristic devices.” These are artificial aids to problem solving. The Constitution does not use the phrases “strict scrutiny” or “suspect class,” but by creating artificial rules that group cases under these headings, the Supreme Court has developed a methodology for defining the outer boundaries of state policing over individual freedom.
Instead of using the Obergefell case as an opportunity to develop and clarify how the concepts of strict scrutiny and suspect class inform the Court’s interpretation of the Constitution, the majority opinion simply ignores these heuristic devices altogether. In doing so, the majority seems to be belatedly embracing the view of Justice Thurgood Marshall in a 1973 dissenting opinion.
In the case of San Antonio Independent School District v. Rodriguez , the Supreme Court heard a challenge to the Texas legislature’s method of funding public schools, brought by residents of San Antonio’s poorest school districts. The plaintiffs alleged that the law unconstitutionally deprived them of the resources for an education while funneling more state money to the residents of wealthier districts. The majority opinion in that case ruled against the plaintiffs. The majority found that the U.S. Constitution did not protect any fundamental right to an education, so the state law could not be subjected to strict scrutiny on that ground. The majority also held that “the poor” did not constitute a suspect class, and that laws treating poor districts differently from rich districts were not unconstitutional on that ground either.
In dissent. Justice Marshall objected to the majority’s use of fundamental rights analysis and suspect classifications as heuristic devices. He dissented from this whole method of analysis. Instead, Justice Marshall argued that the Court’s focus should have been on the fact that the Texas legislature’s financing plan for public schools did not even satisfy the state’s objectives, and that the state had failed to identify any rational reason for financing the school system in this way.
Obviously the Supreme Court should not rule unconstitutional any state law that is poorly designed for its purposes. However, Justice Marshall argued that, in situations where the individual interest at stake was significant, and that interest was closely related to rights that were constitutionally protected, the Court should at least require the state to articulate a good reason for its actions.
The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.
Therefore, something like providing an access to education, with all of its implications for individual growth, economic opportunity and happiness, should be an important enough objective to justify rejecting a flawed funding system as unconstitutional, he argued, without regard to whether the Constitution explicitly protected education as a fundamental right, and especially when poor residents receive discriminatory treatment under the law.
One can imagine Thurgood Marshall writing today on the subject of same sex marriage. He would likely point out that if the objective of marriage is to create stable relationships and self-sufficient families, then it makes no sense to deny equal access to marriage to same sex adults who are not related and who are willing to commit themselves to a union. Where the individual interest in pursuing our own intimate relationships is high, the state needs a good reason when it places limits on the expression of that interest for some of the population but not for all of the population, Justice Marshall might say.
What Justice Marshall imagined, the Obergefell majority seems to have called into existence. Certainly, Justice Kennedy’s majority opinion seems to operate without regard to the Court’s precedent concerning how to identify fundamental rights or which suspect classifications violate equal protection.
If the Court has truly abandoned these heuristic devices, it will come with a downside. The analytical framework that these devices provide allows the Court to develop its jurisprudence of rights in a transparent and incremental fashion. Using an identified analytical framework also facilitates predictability in the law, which is an important value. People should be able to predict what their rights and obligations are. By veering towards Justice Marshall’s approach to defining individual rights, Justice Kennedy allows for more sudden and unpredictable changes in the constitutional landscape. I believe that the Supreme Court works best as an institution when it places its reasoning before the public in a clear and consistent fashion.
From this perspective, more than one argument can be made that in Obergefell the Supreme Court got to the right place by the wrong method. On the one hand, some observers claim to personally support gay marriage but argue that the Court should have left the issue of same sex marriage for the states to resolve. However, an alternative criticism of the Court’s holding might be that the Obergefell majority should have proceeded by explicitly defining same sex couples as a suspect class under the Equal Protection Clause. By avoiding this route, the majority missed the opportunity to extend and preserve a more predictable tool for understanding the scope of un-enumerated constitutional rights in future cases.
There are many people who applaud the Court’s decision in Obergefell, many who decry the decision, and more than a few who are happy with the result but dissatisfied with the Court’s methodology. I don’t know who is right. The only thing that I know for certain is that somewhere, somehow, Thurgood Marshall is smiling.