Liberty, Equality and the Right to Marry under the Fourteenth Amendment

Part II of the judgment

Part I very briefly recounts the history of the litigation.

The stress on the evolving nature of marriage was presumably laid in anticipation of the argument that the ‘liberties’ embraced by the Fourteenth Amendment comprised only those issues that could be said to have a clear and longstanding empirical root in the fabric of American life, and since same-sex marriage dated only back to 2003 – and then only in Massachusetts – it could not have that character. The thrust of Justice Kennedy’s analysis seems to be to assert that the gender identity of spouses is an ‘aspect’ - and a ‘deep’ aspect – of the traditional understanding of marriage, but not an indispensable element of it. This proposition might have been argued more fully and more deeply grounded in empirical study. For example, the sub-title of the Coontz book referred to is ‘How Love Conquered Marriage’. The book is a sweeping, cross-cultural historical survey of marriage. Kennedy’s reference to it is rather skimpy, and might more helpfully have focused on chapter 15-17, which trace developments in the United States in the post-1945 era, and make a credible case for the proposition that a – if not the – dominant motive for marriage in the near modern era lies in a reciprocal desire for companionship and emotional intimacy rather than child-rearing.

STEPHANIE COONTZ, THE WAY WE REALLY ARE: COMING TO TERMS WITH AMERICA’S CHANGING FAMILIES (1997) is perhaps a similarly useful source on the empirically ill-founded notion of the composition of the ‘traditional’ American family.

The next section of Part II runs with the notion of changing understandings of ‘equal dignity’ in relation to the traditionally subordinate status of women vis à vis men and applies it to recent attitudinal changes in modern American society to homosexuality:

This dynamic is portrayed as manifesting itself in culture and politics and law:

Part III seeks to identify ‘dignity and autonomy’ as values synonymous with liberty under the Fourteenth. Justice Kennedy’s opinion speeds through bits of the celebrated 1960s contraception cases

Poe v. Ullman, 367 U.S. 497 (1961); Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).

Justice Kennedy then carries this couplet of dignity and autonomy into a trio of ‘marriage cases’ in which State prohibitions on marriage were struck down. The first, chronological and in the judgment, is the Warren Court’s well known (unanimous) opinion in Loving v. Virginia:

Loving v. Virginia, 388 U.S. 1 (1961).

It is difficult to avoid the conclusion that the majority in Obergefell is playing rather fast and loose with the respective ratios of the three ‘marriage case’ judgments in invoking all of them as a support for the notion that the ‘fundamental’ characteristic of marriage is indifferent to the gender(s) of the participants. Thus, for example, Justice Kennedy asserts “Loving did not ask about a right to inter-racial marriage”.

Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015).

Similarly, Justice Kennedy asserts that: “Turner did not ask about a ‘right of inmates to marry’.”

Id.

As to Zablocki, this case: “did not ask about a right of fathers with unpaid child support duties to marry”.

Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).

All three cases were of course decided in eras when – on the majority’s own argument – being homosexual was to be part of a stigmatized and marginalized minority. It is easy to suggest that they therefore offer no support for the substance of Kennedy, J.’s conclusion. But that suggestion misses – or perhaps deliberately ignores the crucial point. The ‘marriage cases’ are perhaps less concerned with the right to marry per se as with the States’ limited capacity to deprive a person of aspects of her/his individuality; that he she is not deserving of the full panoply of individual rights because (per Loving) she/he is black or (per Turner) she/he is a prisoner or (per Zablocki) he/she is an indigent parent. A denial of a fundamental right is a particularistic manifestation of a broader liberty value; to be recognized by law as an individual.

Thus we might conclude that discriminatory anti-gay laws (as to employment, or private sexual conduct, or public displays of affection) laws rested on the legislative premise that their targets were not ‘individuals’ in the full sense, but a lesser breed of person properly excludable from some of the manifestations of liberty enjoyed by ‘normal’ people. This is a point developed further below in relation to part of the dissenting judgment offered by Chief Justice Roberts.

It is very noticeable in Obergefell that while the majority makes copious references to previous Court decisions, it rarely quotes from any of them at any length. A short passage from Griswold is invoked (perhaps to underline the point that even fifty years ago marriage was recognized as having a value beyond child-rearing):

As a technique, this is quite curious. One might initially suppose this is because - as alluded to above – any extensive quotation would undermine the majority’s liberty argument. But that is certainly not the case. Consider, for example, the following passage in Zablocki, which roots the right to marry within the broader right of an individual’s entitlement to privacy,

In the classic Warren and Brandeis sense as a right to be let alone, not a right to keep things hidden; Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1899).

The final paragraph of this passage might be the most helpful to the majority’s argument:

There is an obvious danger that the copious citation of authority without any extensive, textually rooted consideration of that authority would expose the majority’s conclusion to the charge that it is essentially creating rather than discovering particular ‘liberties’, and as such is overstepping the limits of its proper constitutional role. We return to this point below. It is therefore perhaps unfortunate that Justice Kennedy felt the need to engage with liberty issues at all, given that his judgment could have rested on what seems to have been regarded by the majority as a secondary ground – that of equal protection.

In Windsor, the majority had held that the Fifth Amendment contained an implied equal protection proviso and – more broadly – that the two concepts would often be so entangled that a breach on one basis would necessarily entail breach of the other. Justice Kennedy seems to have followed a similar path in Obergefell, observing that there is a ‘synergy’ between the two concepts. The crucial passage on the equal protection point is however rather cursory:

It might have been helpful if at this juncture the majority has spelled in considerably more detail just what the ‘benefits’ is issue were, and in what respects same-sex partners were disrespected and subordinated. Justice Kennedy touched briefly on these points in Part I of the judgment, but they were not drawn out at any length. The only issue raised in relation to Mr. Obergefell – whose partner had died – was that he could not register as the surviving spouse on his partner’s death certificate. That is not the weightiest of issues. The point noted under Michigan law was arguably much more substantial; gay couples could adopt children only as individuals, not as (unlike a married man/woman) a couple. Thus if the adopter partner died, the surviving partner would have no legal custodial rights vis à vis the deceased partner’s adoptive children. No ‘tangible’ equal protection issues were highlighted raise at all in respect of Tennessee and Kentucky. Nor did Justice Kennedy make anything significant of the deleterious effects on same sex couples of the ‘disapproval’ to which he referred. Similarly, the majority made nothing of the point that the State laws also forbade the creation or recognition of any form of civil partnership that would grant same sex couples the tangible benefits bestowed on married couples. For the lawmaking majorities in those States ‘separate and unequal’ was evidently the proper moral position.

The balance of the majority judgment is certainly shaped to some extent by the way that the various cases joined in Obergefell were pleaded and argued in the lower federal courts. Those pleadings and arguments do appear to owe rather more to a liberty than to an equal protection analysis of the issue, but it is unfortunate that the majority did not rest its judgment (much) more firmly on an equal protection basis. Had it done so, it might have reduced the significance of the most problematic part of its decision.

Perhaps the most peculiar self-inflicted wound that the majority deals to the legitimacy of its conclusion is this sentence in Part IV of the judgment:

Obergefell v. Hodges, 153 S. Ct. 2584, 2605 (2015).

The notion that ‘fundamental rights’

One might assume that the majority includes the notion of equal protection as an element of ‘fundamental rights’.

The unhappy nature of the majority’s phraseology becomes clearer when Kennedy goes on just a few lines later to invoke the classic modern judicial formulation of the way in which the constitution reconciles understandings of ‘democracy’ and fundamental rights–Justice Jackson’s speech in West Virginia Board of Education v. Barnette.

W. Virginia. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

The argument is admittedly difficult to carry on the same sex marriage issue simply because so many States wished to forbid it. A recurrent and contentious element of the Court’s death penalty jurisprudence in the modern era has been the use of State head counting as an aide to assessing the continued constitutionality of death penalty legislation. The technique was first deployed shortly after Furman v. Georgia

Furman v. Georgia, 408 U.S. 238 (1972).

This is in part because it can be portrayed as a back door route to constitutional amendment. A rule of constitutional law resting (wholly or in substantial part) on a head count which comprises fewer than the three quarters of States whose assent is required for constitutional amendment has dubious legitimacy in quantitative substantive terms. Procedural concerns also blend in with matters of substance. Voting behavior (whether of electors or legislators) in States may be significantly affected by the normative nature of ‘the law’ being voted upon. Individuals may be more willing to support (or be less likely to oppose) a new law intended to affect only a particular State, and which could quite easily be changed within the State in future than, a law intended to amend the Constitution.

Either because the voter recognizes that the law may turn out to have less desirable effects than she hopes, or that her own views might evolve, in which events she might wish the law to be changed; or that she does not think it proper for voters in States which do not share her view to be obliged to do so.

Relatedly, the practice is obviously problematic insofar as it can be portrayed as shutting down political debate. If the court has declared a particular sentencing policy unconstitutional, then the pro-policy minority cannot increase to a majority; indeed it disappears altogether. Movement from the status quo would require the court to change its collective mind or – a most unlikely proposition - that the requisite majorities suddenly and then sustainably appear in both Congress and the States for the constitutional amendment expressly permitting the policy to be applied.

There is no express mention of head counting jurisprudence in Kennedy’s opinion. The technique could presumably have no legitimacy as a source of constitutional law if only a dozen States recognize same-sex marriage, while nearly forty prohibit it. And it is perhaps around this question of numbers that the majority judgment faces its greatest difficulty.

Even before Windsor, same-sex marriage as a purely ‘political’ as opposed to ‘constitutional’ issue

Any attempt to sustain a stark dichotomy between ‘political’ and ‘constitutional’ issues is fraught with difficulty. It would be silly to assume that some people’s views as to what they consider politically desirable is not shaped (and perhaps profoundly) by what they regard as constitutionally permissible.

That premise is diluted, or perhaps obscured, by an odd passage at the start of part IV of Kennedy’s judgment which seems to say that because there has been a great deal of political argument on the question, in all sorts of ways and all sorts of forums, an ‘enhanced understanding of the issue’

Obergefell v. Hodges, 135 S. Ct. 2584, 2591 (2015).

That perception may be reinforced by the very cursory attention the majority gave to the (purported) policy arguments offered by the States to support their respective laws. Justice Kennedy simply dismisses as ‘counterintuitive’ the assertion that same sex marriage would harm marriage as an institution because it would deter opposite gender couples from marrying. A more fully reasoned rebuttal of that argument and other supportive propositions might have lent greater weight to the majority judgment.

All in all, it is difficult to avoid the conclusion that the majority judgment is less than convincing, and that giving prominence given to the liberty rather than equal protection dimension of the issue was a poor strategic choice. Happily however for the majority of the Court, the reasoning offered up by the dissent has even less to commend it.

The crux of the Chief Justice’s critique of Kennedy’s opinion is presented as lying not – crudely – in a question of substantive morality (i.e. who should be allowed to marry), but in a question of the separation of powers (i.e. which governmental institutions should be empowered to determine which aspects of that substantive moral issue). The analysis proceeds from the premise for several hundred years both Congress

Accepting that defining the elements of marriage is essentially a State enterprise, it should be recalled that in the early years of the U.S.A.’s history Congress exercised ‘State-like’ powers over the territories and continues to do so in respect of Washington D.C. and inter alia, Puerto Rico, the U.S. Virgin Islands and American Samoa.

Simply put, any legal ‘right’ that individuals might have to marry a person of the same gender is a right that can be derived only from State law – whether from the State constitution or legislation or common law. As legal communities, operating within specific geographical boundaries, States may (subject only to narrowly defined Fourteenth Amendment restrictions) allow or prohibit such marriages as they each think fit. And it is open to individuals who dislike the substance of the legal choice made in their home State to move to State with laws more to their liking or to stay put and make efforts to have the unwanted law changed.

The Chief Justice’s ‘liberty’ is a mechanism to safeguard long accepted values against newly emergent majoritarian threats. The accepted ‘liberty’ in issue in Meyer v. Nebraska was to teach one’s children a foreign language: in Pierce it was to educate one’s child in a private school. Such choices, even from the Meyer/Pierce perspective of the 1920s, were properly seen to stretch back to and beyond the revolutionary era.

Because there is no such traditional basis in respect of marriage between same sex partners, majoritarian denial of such marriages cannot infringe a liberty interest. For the Chief Justice, that spouses be of opposite genders is not simply a deeply rooted element of marriage, but an irremovable core. On this reasoning, same sex marriage could eventually become sufficiently ‘traditional’ that it would amount to a liberty interest, but that state of affairs lies many years in the future.

Chief Justice Roberts obviously accepts that ‘traditional understandings’ can be altered by constitutional amendment. Nor does he suggest that Loving, or Zablocki or Turner mis-stated the restrictive effect of the Fourteenth Amendment on State autonomy on the question of who might get married at all (and to whom). His position is rather that those cases were decided without any doubt being cast on the correctness of the assumption that marriage could only be a male/female relationship. As such, they provide no authority in the proper legal sense for the conclusion that ‘liberty’ embraces same-sex marriage.

He is similarly dismissive of the contraception and privacy cases as an authority for such a proposition: in part because (obviously) the State laws in issue there were directed at mixed sex couples; and in part because the laws purported to impose criminal penalties on the targeted individuals. Similarly, Lawrence is seen as irrelevant because – notwithstanding it forbids discriminates on the basis of sexual orientation – that protection is limited to a freedom from criminal sanctioning of an essentially private (intimate) act. Proponents of same sex marriage in contrast: “….do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits”.

Obergefell v. Hodges, 135 S. Ct. 2584, 2620 (2015). There is a temptation to see this as akin to an “as long as they don’t frighten the horses” approach to gay rights. That may be Chief Justice Roberts personal view. However there is in fact some relatively substantial empirical evidence to suggest that a significant number of voters who favored the opposite gender marriage laws would also have been content to prohibit sexual orientation discrimination in other fields, especially employment; see Lofton supra note 14; Wilcox et al, If I Bend This Far I Will Break: Public Opinion About Same Sex Marriage, in Rimmerman & Wilcox eds., supra note 8.

If there is no ‘liberty’ in issue, it is therefore open to the States to deny same sex partners the right to marry each other as long as such policy can be shown to have a rational basis: “And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.”

Obergefell v. Hodges, 135 S. Ct. 2584, 2611 (2015).

To that point, the Chief Justice’s argument has an obvious credibility. That credibility is eroded somewhat by the simplistic assertion – embraced to some extent as noted above by the majority as well – that the majority decision is necessarily ‘anti-democratic’. But where the dissent most loses force is in Roberts’ attempts to bolster his more abstract criticism with reference to historical precedent, by equating the majority decision in Obergefell with the ‘majority’ views in two of the Court’s most controversial judgments: Dred Scott v. Sandford

Dred Scott v. Sandford, 60 U.S. 393 (1856).

The reference back to Dred Scott is quite extraordinary. In part, this is because of simple error. Chief Justice Roberts asserts for example that ‘the Court’ in Dred Scott held that the Fifth Amendment protected a slaveowner’s liberty to take his slaves into the territories and keep them there against Congressional legislation. That assertion is – as Roberts must surely know – just plain wrong. Chief Justice Taney offered up that idea (almost in passing) in his leading judgment, but only two other members of the court clearly concurred with that conclusion

See DON FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS, CH. 17 (1978).

And then wonder if they could be applied - in a diluted sense of course - with some felicity to majoritarian sentiments towards gay Americans in the recent past. In denying legitimacy – and of course legality - to the continued stigmatization of a minority group by the majority, Justice Kennedy’s judgment is in its most important respect entirely antithetic to ‘the court’s’ decision in Dred Scott.

The Chief Justice’s invocation of the 1905 judgment in Lochner perhaps does less – but still some - damage to the cogency of his argument. In Lochner, a 5-4 majority invalidated New York legislation which sought to place a ten hour per day maximum on working hours in, inter alia, bakeries. Roberts is manifestly correct in portraying the majority decision in Lochner as ‘discredited’. However he misses - or perhaps chooses not to mention – the rather obvious difficulty in seeking to equate that majority decision with the majority view in Obergefell.

The analogy is patently flawed. The intention of the New York legislature in 1897 was to protect an economically weak minority of employees from exploitation by their economically much more powerful employers. The Lochner majority of course portrayed that law as one restricting the liberty of employees to work (if they ‘chose’) eleven, twelve or more hours per day. Whether through ignorance or mendacity, the Lochner majority closed its eyes to the political realities which the law addressed. The State initiatives in issue in Obergefell could hardly be portrayed as protecting a weak minority – their purpose is further to disadvantage that minority; and, in States where the relevant law takes the form of a constitutional amendment requiring a super-majority, to entrench that disadvantage beyond the ordinary political process. The majority decision in Lochner perpetuated oppressive conduct; the majority decision in Obergefell ends oppressive conduct.

Chief Justice Roberts also neglects to mention that a (perhaps the) primary reason for the rejection of Lochner by the new deal court was its acceptance in products that economic policies of general application were most unlikely to raise fundamental rights issues. The obvious point of reference is the famous footnote 4 of United States v. Carolene Prod. Co., 304 U.S. 144, 154 (1938).

The Chief Justice’s dissent is however a model of intellectual rigor and linguistic restraint when set alongside the splenetic tantrum offered up by Justice Scalia who introduces his judgment in apocalyptic terms:

Scalia of course muddles the notion of ‘the People’ with the country’s various geographically discrete lawmaking majorities which act through legislation or constitutional amendment under State constitutions. These are not ‘the People’. They are ‘mini-Peoples – (often) teeny tiny minorities of ‘the People’. It remains entirely open to ‘the People’ to decide that the Court has lent the national constitution an unacceptable meaning, and to alter the constitution accordingly: “No State nor the Congress nor the President nor any federal court nor any federal executive body shall ever permit nor recognize as a marriage any legal relationship between two persons if those persons are of the same gender” might be a form of words that does the trick. And so long as the mini-Peoples of the three quarters of the States can simultaneously coalesce in support of such sentiments, then the ‘political’ process will have settled the issue until such time as sufficient mini-Peoples coalesce in favor of a new settlement.

Justice Scalia’s hysteria is repeated in a passage in which he accuses the majority of being:

This is just the silliest of things to say. It is – and one might note it has always been – a tenet of the constitutional settlement that any person or groups of people are ever at ‘liberty’ to seek to have the constitution amended; so long as that is done in an orderly, peaceful (and one hesitates to say it ‘democratic’) fashion. On this reasoning – one wonders how Chief Justice Roberts would treat the point - anyone who suggested Dred Scott or Lochner was wrongly decided ‘stood against the Constitution’. The premise is nonsensical. Justice Scalia may have been a judge of formidable intellect and learning. Opinions such as the one he produced in Obergefell do little to buttress any such conclusion. The similar sentiments of Justices Thomas and Alito do not merit separate attention.