Supreme Court Update: Obergefell v. Hodges (14-556)

June 28, 2015 Supreme Court Update

Greetings, Court Fans!

In a week that saw the Court hold that facial challenges are available under the Fourth Amendment, that disparate-impact claims are available under the Fair Housing Act, and that tax credits are available on Obamacare's Federal Exchanges, Friday took the progressive cake, when the Court in Obergefell v. Hodges (14-556), made marriage licenses constitutionally available to same-sex couples in all fifty states. In a 5-4 decision authored by Justice Kennedy, the Court held that "the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty." That holding also naturally settles the other question before the Court: The Constitution requires states to recognize same-sex marriages validly performed in another state.

For those just waking up from a long slumber, a short recap. In 2013, the Court (also 5-4) decided United States v. Windsor, invalidating the Defense of Marriage Act (DOMA) and requiring the federal government to recognize same-sex marriages lawfully performed or recognized by a state. Since then, several federal courts of appeal have extended the reasoning of Windsor to also strike down state-law prohibitions of same-sex marriage. But the Sixth Circuit, in consolidated cases involving 16 same-sex couples, ruled that the states in its Circuit (Kentucky, Michigan, Ohio, and Tennessee) need not allow sex-same marriages or recognize same-sex marriages performed in another state. That ruling led to the High Court showdown on the issue.

As in Windsor, Justice Kennedy authored the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. In a show of solidarity, no member of that group wrote a separate concurrence. Justice Kennedy wrote of the long and deep tradition of marriage as a central institution in society, and he recounted the individual stories of some of the plaintiffs in the cases before him and the impact of the states' refusals to recognize their unions. The point, he said, is that these couples wish to celebrate, not demean, the tradition of marriage. Justice Kennedy reviewed the changes in marriage over time, including the abolition of coverture by which a married man and woman were treated by the state as a single, male-dominated legal entity. This evolution makes "new dimensions of freedom . . . apparent to new generations." At the same time, society's understanding and treatment of gays and lesbians have also evolved, providing them with new freedoms and legal protections. That brings us to gays and lesbians wishing to marry.

Justice Kennedy analyzed how the Due Process Clause of the Fourteenth Amendment protects fundamental liberties, including personal choices central to individual dignity and autonomy such as the intimate choices one makes that define personal identity and beliefs. While history and tradition are important considerations in the meaning of liberty, they do not define its outer boundaries. The Framers of the Constitution could not know the full extent of freedom "in all of its dimensions" and entrusted future generations to protect liberty "as we learn its meaning" and gain new insights. Numerous marriage prohibitions have been stricken in recent decades, including those restricting marriage by interracial couples, inmates, or fathers behind in child support. The "right to marry is fundamental under the Due Process Clause" and the reasons why that is so apply equally to same-sex couples. These include (1) the right to personal choice regarding marriage as inherent in the concept of individual autonomy; (2) the right to intimate association that comes with marriage; (3) the safeguarding of children and families; and (4) the place that marriage holds in American society as a keystone of our social order and communities, as reflected also in how government rights, benefits, and responsibilities turn on marital status. Rights have not been recognized in the past solely by reference to those who have exercised them; limiting rights to just those individuals prevents granting rights to those who have been denied them. The same liberty promised by the Due Process Clause also extends in this instance to the Fourteenth Amendment right to the equal protection of the laws, and several of the past marriage cases have relied on both the Due Process and Equal Protection Clauses.

Justice Kennedy acknowledged the arguments for continuing to debate the issue through the democratic process, but reasoned that there has now already been considerable debate and a large body of court decisions that have enhanced an understanding of the rights at stake, and it is no longer tenable to deny a fundamental right while the debate reaches its conclusion. For these plaintiffs, in particular, awaiting further debate will cause them irreparable harm. Recognizing their rights will harm no one, and those who continue to oppose same-sex marriage out of religious belief can continue to adhere to their religious views. The Court's decision therefore grants same sex-couples "equal dignity in the eyes of the law."

Four Justices dissented, in four separate opinions. First, Chief Justice Roberts, joined by Scalia and Thomas. argued that, while those advocating for same-sex marriage make good arguments based on social policy and fairness, and while many states have agreed with those arguments, the Court is not a legislature and cannot confer constitutional rights based on what it might think is a good idea. The states are free to define marriage, and a "decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational." According to Roberts, closing off democratic debate in state legislatures will in fact stunt further social acceptance of same-sex marriage as an institution. He called for judges not "to confuse our own preferences with the requirements of the law." The Chief referred to the majority's factors for determining marriage as a fundamental liberty interest under the Due Process Clause as entirely undisciplined policymaking under the guise of substantive due process, planting this case firmly within the line of cases beginning with Dred Scott and including Lochner (as well as Griswold and Roe). The Chief acknowledged that there is some room for substantive protection of liberty, but only if objectively and deeply rooted in history and tradition and therefore implicit in a concept of ordered liberty. In this instance, the Chief maintained, the majority went even further afield in its "aggressive application of substantive due process." Earlier marriages cases, for example eliminating barriers to interracial marriage, did not redefine marriage. Earlier cases invalidating bans on contraception and homosexual relations addressed invasions of privacy, whereas the marriage laws in Sixth Circuit states create no crimes and leave same-sex couples free to raise families and engage in intimate conduct. There is no reason, the Chief maintained, that those advocating a right to "plural marriage" could not use the same analysis adopted by the majority opinion, especially as plural marriage, unlike same-sex marriage, actually has long historical precedent. Turning to the equal-protection component of the majority's analysis, the Chief criticized the majority for failing to anchor its analysis in "anything resembling our usual framework for deciding equal protection cases." In concluding, the Chief attempted to separate his disdain for the majority's analysis from any hostility toward the petitioners and their supporters: "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. It had nothing to do with it."

In a separate dissent, Justice Scalia (joined by Thomas) wrote to sound the alarm over what he perceived as a "threat to American democracy." Decisions about the scope of marriage should be made by the people and not by judges. Democracy has allowed the debate over marriage to flourish in the manner the Constitution intended. The Fourteenth Amendment does not speak to the issue—the adopters of the Amendment unquestionably did not view its protections as extending to prohibit state laws limiting marriage "to one man and one woman," and that ends the constitutional analysis right there. The Supreme Court is not a representative body (as Scalia demonstrated by running through the demographic details of the nine Justices, none of whom are Protestant and none of whom hail from the vast middle of the country) and cannot act as a super-legislature to extend rights not found in the Constitution or conferred by a state's legislative process. Adding insult to injury, in Scalia's mind, the majority opinion's "showy profundities" are "profoundly incoherent." In a devastating footnote, Scalia confided that if "I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

Next up, Justice Thomas (joined by Scalia) criticized the majority's view of liberty as an entitlement to government benefits, rather than the long-rooted view of liberty as freedom from government action. The Due Process Clause does not confer substantive rights, and judges may not create them based on personal views. The clause only guarantees whatever process is due a person before being deprived of life, liberty, and property. That is the meaning that would have been familiar to the Framers of the Constitution. By no means have same-sex couples been deprived of liberty by the states' laws at issue; "to the contrary, they have been able to cohabitate and raise their children in peace." But liberty does not require a state to grant these couples recognition and benefits. In contrast, the Loving case overturned a prosecution of an interracial couple. The democratic process by which state legislatures have debated marriage laws also represents liberty. Liberty also encompasses religious liberty, and as marriage is also a religious institution, the majority's decision likely will cause conflict even if the majority says that religious beliefs will be respected. Finally, Justice Thomas took issue with the majority's need to have the Constitution confer "dignity" on same-sex couples. Human dignity is innate; slaves and those held in internment camps retained their dignity and humanity. Dignity does not depend on obtaining benefits from government. "The government cannot bestow dignity, and it cannot take it away."

Finally, Justice Alito (joined by Scalia and Thomas) lamented the how the majority's "temptation to achieve what is viewed as a noble end" has won out over "the virtues of judicial self-restraint and humility." Those virtues dictate how a term like "liberty" in the Due Process Clause should be interpreted by unelected judges: it can be extended to protect only those rights deeply rooted in the nation's history and tradition. There is no such history and tradition encompassing same-sex marriage. Marriage has evolved as a social institution over the years, with many today viewing it as vehicle for expressing personal happiness, but the traditional view that has endured for millennia has linked marriage "to the one thing that only an opposite-sex couple can do: procreate." Perhaps that understanding of marriage has frayed, but the trends in marriage have evolved organically with its consequences not always known or anticipated, and so change should remain part of the democratic process and not a matter of constitutional interpretation by judges. Justice Alito was particularly concerned that those who believe in or advocate a more traditional understanding of the marriage institution will be vilified in our society, given how the Court has now compared that belief to denying equal treatment to African-Americans and women. Federalism provides room for people in different states, holding different beliefs, to bind together as a nation, but today's decision marginalizes the many Americans who hold more traditional ideas. The decision "shows that decades of attempts to restrain this Court's abuse of its authority have failed."

It was quite a week at the Court, but there are still three biggies left for Monday, addressing independent redistricting commissions, the EPA, and lethal injection protocols. Stay with us as we bring you summaries of those cases, as well as the remaining two from last week.