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Tuesday, June 30, 2015

Married At Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage






It was a surprise last Friday when the United States Supreme Court handed down the decision in Obergefell v. Hodges, the gay marriage case on appeal from the Sixth Circuit here in Ohio.  No one really expected the decision until Monday, when the Court would be done for the year.  It is so controversial I’d predicted the Court would throw it from the airplane door as they left National Airport; see http://douglaswhaley.blogspot.com/2015/04/oral-arguments-on-gay-marriage-in.html.  Bravely, however, they handed it down while still in town.  

The oral arguments had scared me (as I mentioned in the above-cited blog post) when even the liberal judges questioned whether it was proper for unelected judges to be deciding such a big question of national importance, but in the end the predictable five-to-four majority (four liberals plus swing-vote Anthony Kennedy versus the four conservatives) came out in favor of striking down gay marriage bans in the four states (Ohio, Michigan, Kentucky, and Tennessee) that were involved in the case under consideration.  This post explores what each of the opinions said.

Justice Kennedy began like this:

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. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

Justice Kennedy started with “liberty” because the Fourteenth Amendment to the United States Constitution provides in part:  "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis added).  As we’ll see this word also was the subject of Justice Clarence Thomas’s dissent.

Obergefell (standing) and Arthur Marry on the Tarmac
Justice Kennedy then discussed some of the facts in the cases before the Court: James Obergefell and John Arthur’s battle to make the State of Ohio list the latter as a married man on his death certificate (they had been married in Maryland on the tarmac when Arthur was too sick to leave the area of the plane, dying shortly afterwards), the fight that April DeBoer and Jayne Rowse waged with the State of Michigan to have them both recognized as the parents of their children, and Army Reserve Sergeant First Class Ijpe DeKoe and his husband Thomas Kostura who had been married in New York but when Sergeant DeKoe returned from service in Afghanistan and the couple settled in Tennessee found that their lawful marriage was (to quote Kennedy) “stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines.”

Next Justice Kennedy switched to a historical exploration of marriage and how it has been defined by our civilization, and explained the many benefits the state of marriage confers on those who are able to have their union recognized.  Specifically he found four “principles” that made marriage important, and discussed each in turn, with citations to legal cases backing these ideals: (1) the right of personal choice to do with your life as you wish, (2) the fundamental nature of marriage in our society, (3) the role of marriage in supporting our families and our children, and (4) marriage as a keystone of social order.  This discussion was filled with memorable quotes such as “as a couple vows to support each other, so does society pledge to support the couple.”  

In his opinion Kennedy traced the history of gay rights and particularly its legal developments both in the state and federal courts, culminating in three big Supreme Court decisions (all of which he authored): Romer v. Evans, 1996 (holding that states could not deprive gays of existing protections without a rational reason), Lawrence v. Texas, 2003 (ruling sodomy laws unconstitutional), and the 2013 holding in Windsor v. United States that the federal statute barring legal protection to gay marriages (the “Defense of Marriage Act”—DOMA) was unconstitutional.  (The latter case caused Justice Antonin Scalia to declare in dissent that the Court’s finding similar state laws unconstitutional was merely a matter of “waiting for the next shoe to drop”).  


The majority opinion then explored the language and history of the Fourteenth Amendment’s guarantee of due process and equal protection and concluded that the Amendment was flexible enough to reach the rights of gays and lesbians to marry free of state interference.  Thus is declared the four state laws at issue unconstitutional and (key word) “invalid.”


The opinion then noted that the respondents in this case (the four states) and many of the briefs filed by “amici” (friends of the Court—various groups and organizations both pro and con) argued that the Court should go slow here, with Kennedy giving a favorable nod to Judge Sutton’s opinion in the 6th Circuit Court of Appeals: “In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages.”  But Kennedy then pointed out that this issue has been debated in many decisions, both federal and state, and in numerous articles, newspapers, online, major studies, and in over 100 amici briefs filed with the court, and at some point a decision must be made.  Yes, Kennedy agreed, it would be best if this issue could be settled by a democratic process quickly, but the issue was before the Court now, and “fundamental rights may not be submitted to a vote.”

Furthermore waiting would not solve the very cases before the Court at bar.  Kennedy:

The petitioners’ stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Ijpe DeKoe and Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recog­nizing his New York marriage. Properly presented with the petitioners’ cases, the Court has a duty to address these claims and answer these questions.

To ward off the idea that the Court’s decision would make religious objectors bend the knee, Kennedy was careful to point out that the First Amendment protects freedom of religion and freedom of speech and thus allows people, religious or not, to believe what they will about the same-sex marriage.  Only the states are bound by the Court’s ruling in this case.

The final paragraph in the majority opinion is worth reprinting in full:

No union is more profound than marriage, for it embod­ies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be­come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be con­demned to live in loneliness, excluded from one of civiliza­tion’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.

The dissenters were having none of that, and all four dissenting Justices wrote separate opinions, while typically concurring with the opinions written by the other dissenters.  Much of what they said overlapped, but here are the highlights:

Chief Justice John Roberts
Chief Justice Roberts took the first shot, and his dissent is well argued.  His major point was that “this Court is not a legislature.”  This idea was the basic focus of all four dissents.  The Chief Justice elaborated:

Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise "neither force nor will but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). . . . The majority’s decision is an act of will, not legal judg­ment. The right it announces has no basis in the Consti­tution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own "new insight" into the "nature of injustice." As a result, the Court invali­dates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

Perhaps cruelly he quotes an article Justice Ginsberg (part of the majority) wrote long ago to support his case:

Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, "The political process was moving . . . , not swiftly enough or advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985).

Roberts’ dissent is long and explores in depth the history of marriage, the legal cases the Court dealt with in the past concerning marriage, and the majority’s analysis of the Fourteenth Amendment, all leading him to conclude the majority is wrong as to its reading of all these matters.  He then turned to troubling questions raised by this new decision.  He starts with polygamy:

One immediate question invited by the majority’s posi­tion is whether States may retain the definition of mar­riage as a union of two people. Although the majority randomly inserts the adjective 'two' in various places, it offers no reason at all why the two-person element of the core definition of mar­riage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradi­tion, a leap from opposite-sex marriage to same-sex mar­riage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

He moved on to what this decision says to religious people who do not agree with it:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a reli­gious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowl­edged that the tax exemptions of some religious institu­tions would be in question if they opposed same-sex mar­riage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

The Chief Justice was also much bothered by the tone the majority opinion takes towards those who disagree with its view of same-sex relationships:

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that "the necessary consequence" of laws codify­ing the traditional definition of marriage is to "demea[n] or stigmatiz[e]" same-sex couples. The major­ity reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring defini­tion of marriage—have acted to "lock . . . out," "disparage," "disrespect and subordinate," and inflict "[d]ignitary wounds" upon their gay and lesbian neighbors. These apparent assaults on the character of fair minded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the major­ity to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray every­one who does not share the majority’s 'better informed understanding' as bigoted.

Roberts cautioned supporters of gay marriage that this victory may not be as happy a one as it appears at first glance:

Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s ap­proach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex mar­riage, making a dramatic social change that much more difficult to accept.

Justice Scalia
Moving on to Justice Antonin Scalia’s dissent we find a much nastier tone.  In a footnote he belittles the majority opinions opening paragraph (quoted above) thusly:

"If, even as the price to be paid for a fifth vote, 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."

His major point is the same as Roberts: the Supreme Court is at its worst when it legislates: “It is not of special importance to me what the law says about mar­riage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”  When he gets to the Fourteenth Amendment he makes the trenchant point that its drafters would never have thought it could be used to let homosexuals walk down the aisle. 

Justice Thomas spends most of his dissent vigorously pushing a point he has often made in the past that “liberty” in the Fourteenth Amendment refers to taking away someone’s liberty (such as making behavior a crime), and should never be used to create substantive new civil rights.  He points out that the Supreme Court decision of Loving v. Virginia in1967, which declared unconstitutional  miscegenation statutes forbidding marriage between those of different races, invalidated a Virginia statute that mandated a criminal penalty for such marriages (thus depriving those marrying a members of a different race of their “liberty” in a way that same sex marriages do not).  [Interestingly, Justice Thomas, a black man, married a white woman in Virginia some years ago, though after Loving had been decided.]  His view of the Fourteenth Amendment, however, has not persuaded the Court in the past, where it has often used the Amendment to create new substantive rights in the same way it did in this case.

Finally, Justice Samuel Alito filed a comparatively short dissent pointing out that the right of gays to marry is not “fundamental” at all under the tests developed by the Court’s prior decisions—it is completely new.  And he doubts the policy implications that so persuaded the majority:

While, for many, the attributes of marriage in 21st­ century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.

Alito also worried about the vilification of those who don’t agree that homosexuality is as normal as heterosexuality:  “By imposing its own views on the entire country, the majority facili­tates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”  

Here is his concluding thought: “Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the ma­jority’s claim of power portends.”

Reading the five opinions (one majority opinion, agreed to by five Justices, and four dissents) I suddenly was reminded of a sensation I had often in law school back in the sixties when I read Supreme Court decisions that were contentious and produced opinions on both side of the same issue.  I would first examine the majority opinion and find myself nodding my head in agreement, eventually concluding that there was no possible argument against what was said.  Then I would read the dissent and be confounded by having the same thought about the opposite conclusion.  My head spinning, I would often end with the uncomfortable idea I wasn’t smart enough to be a Supreme Court Justice and should resign myself to a legal practice that involved writing simple wills or merely stamping routine documents.  That was my reaction in 2015 to the opinions in Obergefell too, though I firmly believe the majority opinion has the best of it.  Let me explain why.

The Fourteenth Amendment has often been used to protect those who are marginalized in society and whose rights are not likely to be granted by a democratic process.  If the Court had ruled the other way ask yourself how long it would be before Mississippi voters authorize gay marriage.  Indeed, following last Friday’s Obergefell decision the Attorney General of the State of Mississippi stopped gay marriages in the state because Obergefell technically only applies to the four states that appealed the 6th Circuit’s opinion, and Mississippi is in the 5th Circuit, which has yet to rule on gay marriage bans.  This is just a delaying tactic since the 5th Circuit currently has just such a case before it and Obergefell now dictates how it will come out.


There is something to be said for the argument harped on by the dissenters (and the foundation of Judge Sutton’s opinion in the 6th Circuit) that the Court should stay its hand and let the issue of gay marriage have a fuller trial in the states before the result is forced on everyone by five members of the Court.  But, as I said in a prior blog post, if the Justices thought that then they waited too long to say it; see http://douglaswhaley.blogspot.com/2015/04/oral-arguments-on-gay-marriage-in.html].  When an appeal is made to the Supreme Court it only takes four Justices to vote to take it up before the Court must hear the case, and the four dissenters could easily have forced this issue at a time when Justice Kennedy, a cautious man, might have agreed with them.  On June 25, 2014, the 10th Circuit Court of Appeals ruled Utah’s gay marriage ban unconstitutional in Kitchen v. Herbert, and that case was appealed to the Supreme Court, which refused to hear the appeal on October 6th of last year.  The Court then refused to hear appeals of similar decisions from a number of other Circuit Courts of Appeal, waiting until the 6th Circuit became the first one to rule in favor of gay marriage bans to accept an appeal.  But by then huge numbers of gays had been married all over the country and it was too late to unscramble the egg.  The states in which there had been gay marriages celebrated for months had accommodated themselves to it, and if Obergefell had now come out the way the dissenters desired (gay marriage bans were constitutional after all) we would have had a major mess: states would have already married gays when they shouldn’t have had to, while their state gay marriage bans had been declared unconstitutional by the Circuit Court of Appeals in which those states were located (like Utah) when they should have been held constitutional.  It would be too late to now declare those marriages invalid and the state bans resurrected without new lawsuits in each state and years of trials and appeals, until all Circuits were finally in agreement with Obergefell. What the four Justices who dissented were thinking when they didn’t take the first appeal, a time when their argument to let the states decide was strongest, I don’t know.  But waiting until over 30 states were forced to marry gays and then trying to undo things was a major mistake.


There will be big battles yet to fight about gay issues in general and Obergefell in particular, and these battles will be fought in the courtrooms, the press, etc.  All over the world some people will be very, very upset by what the Court has done.  I wonder if it’s occurred to the Justices that their lives could actually be in danger if some rabid homophobe decides to make an example out of one of them.  Kennedy would be the most obvious victim, followed by the liberal members of the Court, but no one should expect some irrational person to make fine distinctions, and, lumping the Justices altogether, even one of the dissenters, ironically, could be at risk.  I trust they are all taking precautions.

I was involved in gay rights battles in Columbus when the first major gay organization here, Stonewall Columbus (then called Stonewall Union), was founded in 1981.  One of the major leaders of the new group was Craig Covey, Stonewall Columbus’s first President, and a brave man I much admire.  He moved to Detroit thirty years ago to run the state’s AIDS organization, but we remained good friends.  By coincidence, he called my husband and me a week or so ago and asked if he could visit last weekend, and as he was getting in his car in Michigan on Friday morning to come for that visit, I texted him and asked if he’d heard that we’d won in the Supreme Court just moments before.  He was delighted, and his visit to Columbus that weekend was a fitting time for celebration of gay rights and reliving the battles we’d fought so many years before.  Talking with him and others about the incredible thing the Supreme Court had done juxtaposed with our mutual past was most fitting (and thrilling).

Craig and Me in the 80s
 
Craig (left) and Me (right) Last Friday

The Constitution is a living document, and like all living things it must change with the times.  Yes, Obergefell will cause problems and we will have to deal with those.  But the Supreme Court has righted an obvious wrong so let’s accept that and move forward.  I’ll give Thomas Jefferson the final words of this blog post:

I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.




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Related Posts:
“The Aging GayRights Activist,” March 24, 2010; http://douglaswhaley.blogspot.com/2010/03/aging-gay-rights-activist.html;
“The History of Gay Rights in Columbus, Ohio,” June 4, 2012;
http://douglaswhaley.blogspot.com/2012/06/history-of-gay-rights-in-columbus.html;
Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court,” November 13, 2014; http://douglaswhaley.blogspot.com/2014/11/gay-marriage-6th-circuit-jeffrey-sutton.html;
“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html;
“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html.


1 comment:

  1. Beautifully written Professor. After the thrill of the decision coming down, I've been checking every day, waiting to read your thoughts on Obergefell. I too have found myself nodding my head in agreement with majority opinions only to turn around and nod my head in agreement with dissents. Although I fundamentally disagree with the dissents (my brief thoughts: real people are involved here, and a "wait and see" approach is not appropriate or just), I was looking forward to your analysis and it did not disappoint.
    --Alyssa Bowerman (Commercial Law, Winter 2012)

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