Supreme Court Roundup Part One: Obergefell v. Hodges

b599a34c0d512e42e3f5277e172bbebcd745dd98Today 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.

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Narrative and Social Control

copslogoIn recent decades, awareness of narrative and of stories in general has increased in many fields and academic disciplines, law included.  However, it is nevertheless surprising to see that even law enforcement specialists in the Justice Department have developed an appreciation of the workings and importance of narrative.

This heightened sensitivity surfaced in the recent Justice Department report on police conduct in Ferguson, Missouri following the shooting of Michael Brown.  Issued by the Department’s “Community Oriented Policing Services” office, the report outlines no fewer than 113 lessons that police in Missouri and elsewhere might learn from developments during the seventeen days following Brown’s death and funeral.

Much of the report is predictable.  It criticizes such police tactics as the use of dogs, tear gas, and so-called “overwatching.”  With the latter, police use rifle sights to survey a crowd from positions on top of police vehicles.  Overall, the report warns that “militarization” of a volatile situation will probably make things worse.

Toward the end of the report, its authors turn to what they label “lost narrative.”  In their opinion, Missouri law enforcement was too slow to provide information about the shooting of Brown and thereby created an opening for alternative representations of the incident.  Supporters of Brown and his family seized the opportunity and offered an alternative narrative, one conveyed largely but not completely through the social media and one stressing that “Black Lives Matter.”

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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 26—Lawrence 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.

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