Saturday, June 27, 2015

Obergefell v. Hodges: The Constitution Lives!

Hark! Love is love, and 
love is love is love is love. 
It is so ordered.

(McSweeney Haiku characterizing Gay marriage ruling)

As Chief Justice Roberts points out in his bitter dissent in Obergefell v. Hodges, our U.S. Constitution says nothing about marriage. The right to marry, let alone the right of same-sex couples to marry, is not spelled out in the Constitution.  It raises the question: where does the "fundamental right to marry" identified by justice Kennedy come from?

The dissenters are correct that this fundamental right to marry comes from the judgment and declaration of the majority (i.e. Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan). They are wrong to suggest that this constitutes an abuse of power by the majority, or that the problem raised is somehow new or novel. As Jack Balkin notes
The arguments of the dissenters in Obergefell for judicial restraint and respect for democratic deliberation would sound a lot more convincing if they hadn't all joined the opinion in Shelby County v. Holder. Shelby County is truly made up out of whole cloth, and it strikes down key parts of an important civil rights statute passed by overwhelming majorities in Congress. Indeed, at oral argument in Shelby County Justice Scalia suggested that the very fact that the Voting Rights Act was passed by such overwhelming margins is a reason that the courts needed to strike it down. Talk about five lawyers undermining democracy and imposing their ideological convictions on the rest of the country.
And, of course, it's not just Shelby County. By its terms, the constitution does not apply the Bill of Rights to the states.  The constitution does not say that the states may not infringe freedom of speech, take property without compensation, deny the right to cross-examination in criminal trials, or deny the right to bear arms...., yet the Supreme Court has held that each of these rights are fundamental and implicit in the due process clause of the 14th Amendment (No State shall “deprive any person of life, liberty, or property, without due process of law"). As recently as 2010, justice Alito used this "substantive due process" analysis to judge and declare a fundamental right to bear arms for self-defense. This right was not written in the constitution--it was put there by Alito, Roberts, Scalia, Thomas, and Kennedy.

For a discussion of how Chief Justice Roberts is off-base with his Lochner reasoning see this discussion by David Bernstein. For a discussion how the majority opinion falls short in its reasoning based on traditional substantive due process analysis, and equal protection analysis, see Bernstein here, and Ilyia Somin here. 

But the dissenters are shedding crocodile tears. They make no effort to explain why, for example, the declaration of a right as implicit in the constitution is perfectly fine when it comes to the right to bear arms for self defense, and not when it comes to a right to marry. [The exception is Thomas who is an outlier and does not believe in substantive due process] The difference between the majority and minority in Obergefell does not come from a difference in judicial temperament or approach: it comes down to the fact that the majority is moved by the right to marry and discrimination inherent in denying marriage to same sex couples; and the dissenters are unmoved by this. The opposite was true in McDonald with the right to bear arms. This is not a question of judicial restraint or abuse of discretion: it is a difference in judgment as to what's really important--what should be recognized as a fundamental right through substantive due process.

So what accounts for all the nastiness and venom in the dissents?

When I studied the constitution in law school, it was half a decade before the advent of the Rehnquist court, which marked a sustained rightward drift of the court. We used Lawrence Tribes' American Constitutional Law textbook (1978 ed.), which has long been overtaken by events.  It hailed from an era where the concept of a "living constitution" ruled supreme--the idea that the constitution should be viewed as dynamic and adaptable to developing social conditions.

In 1982 a conservative group of lawyers and law professors founded the Federalist Society. For the last 30 years, as Steven Calabresi has noted "the Society and many of its members have promoted originalism as the correct philosophy to use interpreting the Constitution." They have successfully  framed the debate in constitutional law and this has caused movement conservatives to be optimistic about their chances of making "originalism" the dominant approach to constitutional interpretation.

Here is Calabresi in 2007:
"President George W. Bush's recent appointment of Reagan administration alumni John Roberts to be Chief Justice of the United States and of Samuel Alito to be an Associate Justice have led many Federalists to hope that there may now be four justices sympathetic to originalism on the Supreme Court. Six of the nine current justices are over the age of sixty-five, which used to be the mandatory retirement age in private business. ... This book addresses the question of what judicial philosophy we should look for in picking new members of the Supreme Court."
In large measure, I believe the animus in the Obergefell dissents is driven by the fact that Kennedy's opinion reaffirms the Supreme Court's commitment to the tradition of a "living Constitution" and calls "bullshit" on the whole Federalist Society project. 

Here is Kennedy (majority opinion, pp. 10-11)(emphasis added): 
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. 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. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimen- sions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a re- ceived legal stricture, a claim to liberty must be addressed.
 Alito rightfully identifies this as a threat to the originalist enterprise. 

Here is justice Alito in his dissent (Alito dissent, pp. 7-8) :
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that
preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
But an affirmation that the Constitution will continue to have relevance and evolve in light of society's changing conditions, and recognizing that judges have an enduring duty to interpret fundamental rights, and to protect them, is not an abuse of discretion. It's what justice Alito and the majority did in McDonald, it's what justice Kennedy and the majority did in Obergefell. The fact that reasonable minds can differ on such questions is the reason we have nine justices on the Supreme Court, and not one.

We are left with the verity that such judicial intervention must be tackled with great discretion and wisdom, and the problem that we must trust individual judges to embody those qualities. The question of what constrains judges interpreting a living Constitution is and will always be with us.

Here is Tribe in my law school text book (American Constitutional Law, 1978 ed) at p. 12:
Louis Hartz has suggested that the task of defending judicial review becomes more difficult as fundamental beliefs and values cease to be widely shared: 'When half of a nation believes in Locke and half in Filmer or Marx, the result is not law but philosophy. Inter arma leges silent (in times of war the law falls silent) .......
That seems to be the main point of Chief Justice Robert's dissent.  As with abortion, he suggests, a large part of the population (half the states) are not on board with same sex marriage. Like the dissenters in this case, they have strong feelings. Roberts suggests that in such cases, the better part of discretion is for judges to leave the issue to the political process

Tribe continues:
[H]owever, the difficulty with such conventional wisdom about the political limits of constitutional law is that it undervalues the place of constitutional discourse and decision in political dialogue. By debating our deepest differences in shared language of constitutional rights and responsibilities, we create the possibility of persuasion and even moral education in our national life. 
By my reading, Kennedy makes his case in Obergefell explaining why marriage should be recognized as a fundamental right, and why now is the correct time to do so. I also believe Kennedy is correct in his judgment that the country as a whole is more ready for this than Chief Justice Roberts recognizes.


  1. I think Roberts takes his job as Chief very seriously. He seems very political. In my unlettered opinion, he had to stretch to find a way to support the Affordable Care Act. His vote on gay rights was a sop to the very religious people who don't believe that the constitution is secular document. If Kennedy had gone against it, Roberts would have been for it. He tanked in a very shrewd way. I would like to think that although the Chief went to Harvard, he's still a practical kid from Indiana. There are deep divisions politically in this country and the Chief understands and respects it. Not sure about the rest of them but I think Kennedy is losing something off his fastball.

  2. Thanks, Don. I agree with you that Roberts has a sound head for politics and wants to bolster the reputation of the court. I'm not sure he "tanked" this dissent. His audience is the country, not Scalia, Alito, and Thomas. The reputation for the court--which is what he cares about--would be helped if this decision were 6-3. He's got a lot of emotion in this dissent.

    Regarding Kennedy's majority opinion, see Jack Balkin's analysis which I've summarized in a separate post.