Monday, June 29, 2015

Obergefell and the End of Religious Reasons for Lawmaking

Nelson Tebbe

Micah Schwartzman, Richard Schragger, and Nelson Tebbe

At Religion & Politics, the online publication of the Danforth Center on Religion and Politics at Washington University in Saint Louis, we argue that Obergefell put an end to exclusive reliance on religious reasons for laws that touch on basic rights. Here are the first few paragraphs:
"In Obergefell v. Hodges, marriage equality for same-sex couples became the law of the land. In the wake of the decision on Friday, focus has intensified on religious freedom for traditionalists. Few of the questions about religious accommodation are novel—they had been playing out in the states for some time. Yet the decision did have important ramifications for the relationship between religion and government in the United States, and it does mark the formal beginning of a new phase in the so-called culture wars. 
The most significant impact of the Obergefell decision for the relationship between religion and government is that it put an end to lawmaking solely on the basis of religious reasons. From the beginning, the only real basis for excluding same-sex couples from civil marriage was religious. At the oral argument in the Supreme Court, as in lower courts, the states struggled to justify marriage exclusion in terms that all citizens could understand. Their theory that expanding civil marriage would weaken a conception of marriage linked to procreation, and thereby lead opposite-sex couples to remain unmarried, was nonsensical. In the Obergefell opinion, the Court called it “counterintuitive.” 
So when the Court struck down exclusions of same-sex couples from civil marriage, it implicitly—but clearly—rejected the idea that such a law could be based on religious reasons alone, without understandable secular aims. Those justifications could not suffice to justify discrimination with respect to a basic freedom like the ability to marry."
The full article is available here.

A Note to Append to Justice Scalia's Dissent in Arizona Redistricting

Mark Tushnet

As Justice Scalia observed, the Court in Coleman v. Miller was "equally divided" on one of the questions in the case, though not on the standing question, where the vote was five (three plus two) to four. I quote from a work in progress (by me), with apologies for the sometimes telegraphic nature of the phrasings:

How could a Court consisting of nine Justices, all of whom cast votes on the other issues in the case, be equally divided? A note in the Yale Law Journal on the case had the title, “Sawing a Justice in Half,” and wondered whether it was “possible to saw a Justice in half during a conference and have him walk away whole?”[1]
According to Justice Frankfurter, the justices realized that their three-to-two-to-four division created a problem only late in the deliberations. Justices Butler and McReynolds had seen no need to cast votes on any other than the length-of-time issue, which was sufficient to justify a reversal. As the divisions within the Court appeared, so did the need to figure out how to write a judgment. Justice Butler apparently went along with the Chief Justice on the lieutenant-governor issue. Black and his colleagues did not. The majority vote on standing may have put them under some pressure, but not enough. Black’s opinion relied on a different doctrine of nonjusticiability, the political questions doctrine, and his analysis was only slightly different from Hughes’s. But, Hughes‘s draft opinion dealt with the lieutenant governor issue squarely on the merits, and it is difficult to see how he could have done otherwise.[2] Black and his colleagues might have been compelled to say something about the substantive issues, but only to the extent that they could dispose of them by invoking a justiciability doctrine. They would not go so far as to rule on the merits of one of the substantive issues.
By this time, though, it was late in the Term – the decision was announced on June 5, 1939 – and the irascible Justice McReynolds had left for his vacation. As Frankfurter put it, “nobody was going to try and call him back – he would have told them, frankly, ‘Go to hell.’ He wouldn’t have come back.” Concluding that McReynolds’s vote on this single issue was not needed to enable the Court to issue a judgment, Hughes decided to announce an equal division.[3]

[1] Id. at 447; Note, “Sawing a Justice in Half,” Yale Law Journal 48 (--- 1939): 1455-58, at p. 1458. Bennett Boskey attributes the note to Yale Law professor Harry Shulman, “Recollections of West Virginia State Board of Education v. Barnette,” St. John’s Law Review 81 (--- 2007): 755- , at p. 787 (comment by Bennett Boskey).
[2] A copy of Hughes’s draft, with the section on the lieutenant-governor issue, is in Hugo Black Papers, Manuscript Division, Library of Congress, box 256, folder Coleman v. Miller.
[3] “Recollections of West Virginia State Board of Education v. Barnette,” note --- above, p. 787 (comment by Bennett Boskey).

Obergefell, Democratic Constitutionalism, and Judicial Review


Among their many other virtues, the opinions in Obergefell v. Hodges contain an important debate about judicial review in a democratic society. All of the dissenters in Obergefell criticize the majority for preempting the decisions of state legislatures across the country and prematurely ending the debate on same-sex marriage.

Justice Kennedy offers two different kinds of responses. At first glance, they seem to be in some tension with each other; in fact they are two ways of describing the same phenomenon-- how lawyers and judges' understandings of constitutional values change over time in conversation with constitutional debates in the larger public.

One of Kennedy's responses to the dissenters is to quote Justice Jackson in West Virginia Board of Education v. Barnette that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” The relevant question is not how much public support there is for same-sex marriage, but whether the right to marry is fundamental and includes same-sex couples. This is a question of law. For this reason, Kennedy explains, the Court was wrong in Bowers v. Hardwick and should have begun to protect gay rights in 1986, if not earlier.  This response treats the interpretation of constitutional rights as isolated from the influences of democratic politics. It boldly proclaims that democracy must yield to fundamental rights, begging the question of how judges discover and articulate implied fundamental rights. Kennedy might respond that judges reason from precedent in common-law fashion. But precedents can be read in many ways.

Elsewhere in the opinion, however, Kennedy reasons quite differently, providing a far more important response to the dissenters.

Read more »

C-Span video interview about The Tough Luck Constitution

Andrew Koppelman

Recorded a couple of weeks before the Court's decision in King v. Burwell.


Richard Posner: Marriage Socialist

Mark Graber

Richard Posner is a marriage socialist.  When explaining why a right to same-sex marriage can be distinguished from a right to polygamy, he wrote:
[P]olygamy imposes real costs, by reducing the number of marriageable women.  Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives.  That leaves 95 men to compete for only 50 marriageable women.

This seems nonsense for numerous reasons and for libertarian reasons in particular.  Implicit in Posner’s preference for two person marriage is a preference for equality over liberty, a commitment to powerful anti-trust laws, and an admission that the Constitution protects at least quasi-positive rights to government benefits.

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Modest John Roberts?

Andrew Koppelman

Judicial modesty, as The New York Times' Adam Liptak observed Friday, was a theme of Chief Justice John Roberts’s opinions in the same-sex marriage and Obamacare cases. In the latter, the Court’s job was to implement the purpose of the statute, not to defeat it by cramped hypertechnical interpretation. “In a democracy, the power to make the law rests with those chosen by the people,” Roberts wrote. In the former, he dissented that “judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment.”

Liptak was careful not to endorse this claim of judicial restraint, and when one considers Roberts’s opinions in context—that is, beyond the context of these two decisions—the claim is hard to take.

I elaborate in a column in the New Republic Online, here.

Yeah, that's fair

Andrew Koppelman

The Supreme Court’s ruling Friday that the Constitution protects same-sex marriage was great news. The party pooper was the remarkably weak reasoning by which the Court got there. Reading the four dissents poke holes in Justice Anthony Kennedy’s opinion for the Court, I kept thinking, “Yeah, that’s fair,” even though on the bottom line the Court clearly got it right. All of Kennedy’s worst traits — the ponderous self-importance, the leaps of logic, the worship of state power — were on display. For a decision this important, the Court should have been able to do better.

I elaborate in a column at, here.

Sunday, June 28, 2015

The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism"

Sandy Levinson

Consider the following passages from the anguished dissents filed by Justices Scalia and Alito in Obergefell:

Scalia:  “[t]he substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage "

Alito: "The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not…. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas."

It's especially interesting, I think, that Alito echoes Justice Holmes in Lochner that the Constitution was made for people "with fundamentally different views."  We know that Holmes had no patience at all with any theories of "natural law" or any other substantive notion of justice.  His conception of law had literally nothing to do with justice and everything to do with recognizing sovereign authority.  There is, I think, much to be said for Holmes's view, but, to say the least, it's a bit odd to it reflected in the opinions of two of the Justices who are viewed as the most "serious Catholics" on the Court.  And if there's one thing we thought we knew about Catholicism, it is that it professes a robust view of natural law and does not recognize the complete separation of law and morals. (A famous article written by a Catholic law professor connected "Hobbes, Holmes, and Hitler," for example.)  

Federalism is also often praised not only for allowing little islands of experimentation, but also, as a practical matter, as a means of acknowledging the diverse views we have about matters of political or social morality and allowing state A to adopt a very different answer to such questions than state B.  Again, there's much to said for this as a means for maintaining social peace, albeit at the cost of accepting the maintenance of what many might consider significant injustice in some of the states.

But note well that what Scalia and Alito are doing is really reviving the theory of "popular sovereignty" best identified with the Little Giant Sen. Stephen A. Douglas with regard to the issue of slavery.  Unlike the hotheaded Lincoln, who noted that "I have always hated slavery, I think as much as any Abolitionist," Douglas professed himself indifferent to the moral critique of slavery.  Perhaps he even would have said that it was "not of immense personal importance to me."  What this translated into was the desirability of letting each state, as it joined the Union, make its own decision as to slavery or freedom.  Somewhat more complicated was the right of the pre-state territory to make its own decision, in territorial legislatures, to welcome slaveowners.  Douglas, to his political detriment, argued that they could place stumbling blocks in the way of the slaveowners, but, if they chose not to, that was all right too.  The important thing was to recognize the fundamentally "federal" nature of the Union, a collection of people with decidedly different views about the legitimacy of owning other human beings as chattels, and to allow that decision to be made locally rather than on a one-size-fits-all national basis.  

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Obergefell and Equality


In Obergefell v. Hodges, Justice Kennedy holds that bans on same-sex marriage violate both the Due Process Clause and the Equal Protection Clause. His equal protection analysis does not discuss the standard doctrinal tiers of scrutiny. He does not hold that restricting marriage to opposite-sex couples violates sex equality, as some amici proposed. He does not hold that sexual orientation is a suspect classification, as the Obama Administration urged the Court to do. He does not suggest that limiting marriage to opposite-sex couples involves unconstitutional animus, as he did in Windsor; nor does he say that the ban fails "rational basis with a bite," because it is premised on irrational prejudice.

At the very end of the opinion there is language that suggests that the exclusion of gay couples would violate even the ordinary rational basis standard, because the only justification that the state could come up with--banning gays from marrying will encourage straights to marry--makes no sense: "it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so." Yet Kennedy does not argue that the exclusion violates rational basis.

Even so, Kennedy's argument for treating same-sex marriage as part of the fundamental right to marry has many significant equality ideas. He states that "[t]here is no difference between same- and opposite sex couples with respect to" marriage's usefulness in grounding the social order. He argues that excluding same-sex couples "teaches that gays and lesbians are unequal in important respects." and that "[i]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society." He adds that "laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter."

As in Lawrence v. Texas, the language of stigma and demeaning sounds in civil equality, and the anti-subordination principle. Indeed, later in the opinion, Kennedy says:
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Obergefell and Tradition


Obergefell v. Hodges is an extended essay on tradition, but the majority and the dissent have very different ways of articulating what constitutionally protected tradition is and how we recognize its contours.

Justice Kennedy argues that constitutionally protected traditions are those which are consistent with the reasons why a social tradition is valuable to us today. "[I]n assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected." Therefore he recites four features of marriage that make it valuable to us today and then argues that same-sex marriage applies to all of them. His opinion assumes that tradition--or at the very least, constitutionally protected tradition--is something that present generations can reason about and rationally extend or alter. Kennedy's recitation of how the couples in the case met, fell in love, married, lived, and raised children in Obergefell is not just an attempt to tug at our heartstrings. He is also trying to show that the reason we sympathize with these couples and their plight is the same reason we sympathize with the hardships and sacrifices of married couples generally.

Roberts, Scalia, and especially Alito, identify constitutionally protected traditions with long-standing traditional practices. They view tradition as the accumulated wisdom of previous generations. Therefore we should not disturb the judgments of previous generations because we are very likely to make a mistake. We view matters from a very narrow perspective--our own lifetimes--and therefore if we try to make significant changes based on contemporary judgments and reasons we are likely to produce unintended and undesirable consequences, as well as destroying institutions of long-standing.

These different conceptions of tradition lead to different views about human knowledge and moral growth. Kennedy regards the evolution of tradition as beneficially shaped by increases in knowledge and understanding. Repeatedly he speaks of "new awareness," "new insight," or "enhanced understanding" of new facts and moral truths, that result from deliberation and political interaction. These recent insights and understandings should properly be incorporated into the constitutional tradition, altering what the tradition means for us today.

The dissenters, by contrast, do not think that present generations are necessarily getting any wiser, even if their values may have changed. At one point in his dissent, Chief Justice Roberts, almost in exasperation, exclaims, "Just who do we think we are?"

Kennedy emphasizes that traditional practices change over time and are always changing. Hence he offers a history of changing conceptions of marriage-- from arranged marriages to marriage for love to the gradual decline of coverture rules to the emergence of companionate marriage between equals. Roberts and Alito, by contrast, emphasize that core features of the institution of marriage have not changed for centuries, and can be found in almost all civilizations, ancient and modern. (Note Chief Justice Roberts' reference to "the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.") The changes that Kennedy describes are not central to the core of the tradition, while the union of one man and one woman is central.

It is tempting to identify the dissenters with Burke, and view Kennedy as opposed to Burkeanism. Certainly the dissenters would like to brand Kennedy as a revolutionary or Jacobin, heedlessly destroying a valued institution at the center of society. But this is a caricature of what Kennedy is actually doing in his opinion. Kennedy's use of tradition is also Burkean in its own way. He simply emphasizes different features of Burke's thought. In particular Kennedy emphasizes change through respect for tradition that results from discussion and lived experience--as opposed to change that occurs through violence and revolutionary upheaval. Kennedy emphasizes the natural evolution and growth of previous commitments through debate, contestation and social practice. Our commitments evolve as they we apply them to changed factual circumstances and our wisdom grows through encountering those changed circumstances in practical terms. We can have greater confidence in our judgments achieved in this way because, unlike previous generations, we have the benefit of their experience, while they do not have the benefit of ours.

Saturday, June 27, 2015

Bye, Bye, Glucksberg


Justice Kennedy's opinion in Obergefell unceremoniously overrules Washington v. Glucksburg  without saying so directly, as the Chief Justice well understands: "It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process."

A little translation is in order here. Glucksberg is not, in fact, the leading modern case on substantive due process and implied fundamental rights. That would be Griswold or Eisenstadt (as reinterpreted by later courts), or (shudder!) Roe, or Casey or Lawrence, or now, Obergefell.

Rather, Glucksberg is the case that people opposed to implied fundamental rights wish were the leading case and regularly cite as if it were the leading case that applied to every such question.

Chief Justice Rehnquist--no fan of implied fundamental rights himself--wrote Glucksberg in 1997 precisely to lay down a marker so that federal judges would stop trying to imply fundamental rights.

He didn't succeed.

Alas, the Court hasn't taken Glucksberg very seriously since it was decided. Not in Lawrence. Not in Windsor, and certainly not in Obergefell.

Here's what Justice Kennedy has to say about it:
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Perspectives on Health Law Developed this SCOTUS Term (Podcast Edition)

Frank Pasquale

Nicolas Terry has interviewed two leading health law scholars (Nicole Huberfeld and Wendy Mariner) on King v. Burwell, for our podcast The Week in Health Law (downloadable here). We both interviewed Huberfeld earlier this year regarding ongoing controversies in US health care federalism, including Armstrong v. Exceptional Child Center. And Balkinization readers will likely enjoy Abigail Moncrieff's prescient take on King, as well. For a future podcast, we'll be asking: is the ACA on the road to becoming a "super-statute?"

Friday, June 26, 2015

Obergefell and Shelby County-- and Lochner-- and Roe


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. . .

The Chief Justice trots out Lochner for ritual denunciations. Good for him! After all, what conservative in good standing supports Lochner these days? (Ahem).

But one opinion is strangely missing from the discussion. Roe v. Wade. The term "Roe" appears only in the name of two law review articles cited by the Justices, and it is implied but not mentioned in a sly reference by the Chief to Justice Ginsburg's famous remarks about Roe.

The majority opinion declines to mention Roe or Casey at all when it discusses fundamental rights and the right of privacy. The dissenters don't use the "A" word at all, except for its appearance in the title of a law review article cited by the Chief. Thomas is the only Justice even to mention Casey.

It seems that abundant references to Lochner (and Dred Scott) are doing the work of references to Roe and Casey, the opinions that dare not speak their names.

Nevertheless, the specter of Roe (and Casey) haunts all of the opinions.

The dissenters think (or perhaps hope) that Obergefell will prove to be another Roe, still controversial after all these years.  The majority hopes that Obergefell will be like Griswold, Eisenstadt, and Lawrence, all of which are now canonical and beyond question for the vast majority of lawyers, politicians, and citizens.  What will actually happen? It's too soon to tell.

My current guess is something in between.  Same-sex marriage is already widely accepted, and will become more so as older people die and are replaced by new generations.  In this sense, Obergefell will be like Griswold, Eisenstadt, and Lawrence.

On the other hand, the culture wars are hardly over. Every time conservatives have lost one battle, they have found another terrain to fight on. In response to Lawrence, social conservatives quickly understood that it was not worth fighting the criminalization question any more. Therefore they switched to fighting over same-sex marriage.

Now that Obergefell has been decided, it is clear that conservatives will fight over religious liberty to refuse to acknowledge same-sex marriage or treat gay couples equally in public accommodations, educational institutions, and other areas of civil society. Justice Alito's dissent rings many of these themes.  Reva Siegel and Doug NeJaime have spelled out a bit of what is to come in the context of reproductive rights in their recent piece, Conscience Wars, which will appear this year in Yale Law Journal.

Sam Alito, Critical Race Theorist


One of the interesting features of Justice Alito's dissent in Obergefell is that it shows how social and religious conservatives are rethinking freedom of speech in the light of the next phase of the culture wars.  In the last three decades many social and religious conservatives have been strong defenders of freedom of speech against "political correctness" on the left. But consider how widespread acceptance of gay rights is quietly reshaping their judgments about what freedom of speech means.

Social and religious conservatives have already been arguing--and will continue to argue--that others should not call them discriminators, much less bigots, because they refuse to accept same-sex marriage or gay equality. Perhaps more important, social conservatives are starting to claim that they are being silenced (and therefore censored) by the larger secular community.  Justice Alito explains:
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

In this respect, social and religious conservatives are reviving left-wing arguments made in the 1980s and 1990s by radical feminists like Catherine MacKinnon and by critical race theorists like Mari Matsuda. They argued that sexist and racist speech silenced (and therefore censored) women and minorities, because they were afraid to speak up for themselves and be thought crazy or disagreeable.  In the same way, Alito argues, general acceptance of equal rights for gays is going to silence religious people, who will be afraid to say what they think because they will be thought backward or bigoted.

Sam Alito as Mari Matsuda and Catherine MacKinnon. Talk about your ideological drift.

Obergefell: Wishing for some Equal Protection

Richard Primus

One disappointment on a remarkable day: It's too bad that no Justice in the Obergefell majority saw fit to make a serious equal-protection argument. 

There are of course at least two straightforward equal-protection arguments that could have been endorsed.  One would regard laws limiting marriage to same-sex partners as denials of equal protection to non-heterosexuals.  The other would regard such laws as simple sex discrimination.  If a man wants to marry a man and is denied a license for doing so, but would have been granted the license had he been a woman, he is discriminated against on the basis of his sex, plain and simple.  So such laws must get heightened scrutiny like all other laws that classify and discriminate on the basis of sex.

I have always considered the sex-discrimination argument compelling, both doctrinally and as a way of capturing what is deeply at stake in same-sex marriage. 

Doctrinally, it always seemed to me stronger than either a substantive due process argument (because tighter and less subjective) or an argument about discrimination on the basis of sexual orientation (because of the automatic ascent to heightened scrutiny).  To be sure, many advocates for same-sex marriage have disfavored the sex-discrimination argument, in part because it does not map the specific project of liberation and recognition for people of non-heterosexual orientations.  That is, from a certain perspective, the sex-discrimination argument asks people in same-sex relationships to "cover" their distinctive sexual identities by folding their claim into one that need not name categories beyond "men" and "women."  But it is not clear that that concern, legitimate as it is on its own terms, should be dispositive.  Constitutional law does not always deliver the goods in exactly the way each plaintiff might want.  We are entitled to due process and equal protection; we are not always entitled to recognition in the particular terms that we would find most resonant. 

What's more, the sex-discrimination argument has the important virtue of placing the same-sex marriage issue in a deep and broadly applicable context.  The major revolution driving much of modern equal protection law is the attenuation of the traditional practice of assigning people to social roles on the basis of characteristics that are inborn, inherited, or otherwise highly resistant to change -- race and sex centrally among them.  The rise of same-sex marriage is a salient manifestation of that development.  It says that people will not be assigned to particular roles within marriage by virtue of their sex, thus reflecting in a core location for sex roles the idea that people cannot be assigned to social roles more generally on that basis.  Given the place of marriage in the traditional sex ordering, if government cannot assign roles in marriage on the basis of sex, then where can government assign roles on that basis?  Pretty much nowhere, and that's the point.  If that idea is deeply internalized, a great deal of liberation and equality for LGBTQ persons follows as a matter of course. 

It may not be surprising that Justice Kennedy gave short shrift to equal protection.  But it is disappointing that none of the Justices who joined him bothered to make the equal protection argument.  It lets the dissenters fail to engage with a doctrinally tighter argument for today's result--one that does not invite either ripostes or good-faith worries about plural marriage, or negative liberty, or Lochner v. NY.  More fundamentally, the omission of a strong equal-protection argument hides a satisfyingly rich explanation for why equal treatment of same-sex and opposite-sex marriages is a necessary aspect of modern constitutional law more generally.

I do not pretend to know the inside dynamics of the Court here, but I find it hard to believe that a separate opinion on equal protection grounds would have risked the majority in today's decision.  Justice Kennedy was going where he was going.  Nor do I see how untoward doctrinal consequences would have followed even if a separate opinion on equal protection grounds had refused to endorse Justice Kennedy's due process rationale and therefore created a holding without a majority.  So I am left to wonder, and to lament.  On an otherwise remarkable day.

A little History

Mark Graber

One central theme in the Obergefell dissents is that a proper understanding of history should have foreclosed a judicial ruling that same-sex couples have a constitutional right to be married.  Chief Justice Roberts maintains that marriage has been defined solely as a relationship between one man and one woman for all time.  Other aspects of marriage, he insists, are superstructural and can easily be discarded.  He also claims that the justices in finding a right to same-sex marriage in the due process clause of the Fifth/Fourteenth Amendment are repeating the error the justices made in Dred Scott v. Sandford when they found a right to bring slaves into American territories in the due process clause of the Fifth Amendment.  Both claims do not withstand historical scrutiny.

Until the twentieth century, marriage was an institution that converted two persons into one legal person.  Blackstone’s Commentaries declare, “by marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage."  The Lawes Resolution of Womens Rights (1632), the first treatise on that subject, similarly declared, “Though by mere conjunction which is between man and wife, . . . they be by intention and wise fiction of law, one person.”  This unity was as central to the conception of marriage as the notion that a marriage was between one man and one women.  Those who claimed in the nineteenth century that married women had a right to own property were appropriately accused of challenging the definition of marriage in their times.

The Chief Justice also misstates history when claiming that Dred Scott was the first instance of substantive due process in the history of the Supreme Court.  Bloomer v. McQuewan (1852), a patent case, enjoys that honor.  More to the point, as a generation of conservative and liberal legal historians have pointed out, state courts before the Civil War commonly employed substantive due process in numerous contexts.  Both pro-slavery and anti-slavery advocates endorsed substantive due process.  Proslavery advocates insisted that laws banning slavery in the territories unconstitutionally took property without due process.  Samuel Chase and other antislavery advocates insisted that laws permitting slavery in the territories unconstitutionally took liberty without due process.  So, I guess, the Chief Justice is repeating the error of Stephen Douglas who thought people could ban slavery in the territories.

The bottom line is that history in Obergefell and in most other cases does not make constitutional choices for us.  More often than not, our choices are which strands of history we find more attractive.  The justices had to decide which features of marriage thought essential in the past are most essential at present. The answer could not be the traditional features of marriage because in 2015, some traditional features of marriage support same-sex marriage and others do not.   The justices had to decide whether to strengthen or weaken an ambiguous line of precedents relying on the due process clause of the Fourteenth Amendment to protect fundamental rights.  If they followed Abraham Lincoln, they would hold that the due process clause protects the "right" substantive liberties.  If they followed Oliver Wendell Holmes, Jr., the reject substantive due process.  Again, tradition does little more than provide canonical figures and quotations for both sides.  We can judge how well they navigated these historical ambiguities only by applying our best standards.

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