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 |
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;
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.
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.
ReplyDelete--Alyssa Bowerman (Commercial Law, Winter 2012)