The Obergefell Dissents - C.J. Roberts Part I

In a recurring series of posts, I will share my thoughts about the dissenting opinions to Obergefell v. Hodges. Because of its length, I'm covering Chief Justice John Roberts' dissent in several parts. Part one, covering the introduction, can be found here.

In Section I of his dissent, the Chief discusses the history of marriage as a right. He casts it in a narrow light, as the "universal" bond of one man and one woman that has transcended time and place. And the recognition of that bond as a fundamental right, he argues, requires that it be limited to one man and one woman.

He begins the section by conceding that "under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally." If that's the case, then Justice Kennedy's majority opinion seems like the obvious conclusion the Court should have made. But Chief Justice Roberts doesn't like that conclusion, so he has to change the subject. As he did in his introduction, he frames the question as one of democratic process rather than due process or equal protection. "The real question," he writes, "is what constitutes 'marriage.' or - more precisely - who decides what constitutes 'marriage.'"

As I noted in part one, this is not the "real question." It is undisputed that the states, either through their legislatures or through ballot initiatives, get to decide what constitutes marriage. The plaintiff couples in Obergefell did not question this. Nobody argued that judges should dream up forms of marriage and impose them on everyone else free of the democratic process. The real question in the case was: once states have made a decision, is that decision constitutional?

If the "real question" really was about "who gets to decide," then how would any state marriage law ever violate the constitution? If acknowledging that "the state gets to decide" is all the analysis necessary, then how could the Supreme Court's decision in Loving v. Virginia have been correct? How would a state be violating the constitution by defining marriage as "the union of one man and one woman of the same race?" Or "one man and one woman of the same religion?" The state gets to decide, and if they decide it in this way, who is the Court to step in? After all:

That's not all Windsor said about the states' control of domestic relations, of course. But before we explore the full implications of this, we'll press on with Section I. In the second paragraph, Roberts sets the stage for a position that is incredibly deferential to a very selective history:

Notice the cite to Town of Greece v. Galloway. In that case, the Court upheld the regular recitation of Christian prayers prior to a town's council meetings. The case joined a line of earlier precedents that allows legislative prayer despite the Establishment Clause of the First Amendment. The justification for this practice (and the related precedents) is literally, "we've always done it that way."

This is problematic because history alone cannot be the end of any constitutional analysis. The Supreme Court said it quite clearly in Williams v. Illinois that "tradition cannot insulate a law from constitutional attack." 399 U.S. 234, 239 (1970). But Roberts is undeterred by this and does not acknowledge it.

He then begins a history lesson that relies on a myth: that one man/one woman marriage as we know it today is the same kind of marriage that has always existed everywhere. Without belaboring the point, that's just not true. What constitutes marriage has varied widely across the globe and across many centuries. Homosexual partnerships, polygamous unions, childless monogamy, sibling weddings, political allegiances, arranged contracts...the list of how humans have formed "legitimate" families throughout history goes on and on. The current, American process of one man and one woman going to a county clerk's office to sign a state-drafted contract and equally sharing all their property is a fairly recent development.

But, even assuming that our current concept of marriage has existed unchanged forever, Roberts' next claim is particularly curious:

Remember this claim: "Marriage did not come about as a result of a political movement." According to Roberts, different-sex marriage is legitimate because it emerged outside of the democratic process. But this runs headlong into his ultimate point that same-sex marriage can only be legitimized through the democratic process. I'll discuss this obvious contradiction more thoroughly as we progress.

Roberts seems to make a natural law argument of sorts. Marriage emerged and exists independently outside the democratic process. It is just something we all instinctively embrace and know the definition of.

There are two interesting premises here. The first is that the definition of marriage "at the founding" was "biologically rooted." Of course, the definition of marriage "at the founding" was also racially rooted, but that's messy and not something we like to acknowledge anymore. Married women were also subjugated by their husbands and couldn't vote or own property. But let's not muddy the water here.

The second is that "no one doubted" what was meant by "marriage." It just "went without saying." Well, in the case to which Roberts cites, the Kentucky state court decision Jones v. Hallahan, there was a doubt as to what marriage meant because Kentucky law was silent on it. So the court did have to say what that was, and did so by looking it up in the dictionary.

Not to be outdone, Roberts also looks to dictionaries to bolster his point. The first one to which he turns is Webster's An American Dictionary of English Language from 1828, which defines marriage as "the legal union of a man and woman for life" which served various domestic and procreative purposes and was "instituted by God himself" (Roberts left that part out of his quotation). This old-dictionary-as-legal-authority tactic, like most Originalist methods of statutory interpretation, is fraught with problems because old dictionaries often represent obsolete, archaic understandings of society and justice. Why should we, today, be bound forever to yesterday's concepts?

For instance, that same Webster's dictionary defines "sodomy" as "a crime against nature." It defines "negro" as "a native or descendent of the black race of men in Africa," and as a word "never applied to the tawny or olive colored inhabitants of the northern coast of Africa." And it defines "ethnic" as "a heathen; a pagan." It's a treasure trove of words and definitions we have long abandoned.

[Note that this dictionary has its own website, and is touted as "The All American Dictionary" that is "a breath of fresh air in an era of political correctness and subjectivism."]

But look, this is just a terrible legal argument. Saying something is constitutionally sound because that's just the way it's always been and everybody just knows it's right is not sufficient under the Supreme Court's own precedents or basic logic. And it definitely invokes an image of judges just imposing their own personal views on the rest of us, something Chief Justice Roberts says he opposes. Look hard enough and you can find your preferred definition of just about any word.

Roberts knows his reliance on one historical aspect of marriage ignores the many others which have changed over time, so he attempts to distinguish them. Sure, there were interracial marriage bans, and coverture, and arranged marriages, but the elimination of those things was different:

This is reductive. Roberts is moving the goal posts to suit his argument. At the time they were in force, anti-miscegenation laws were believed to be integral to the "core structure" of marriage as a racially pure union that produced racially pure offspring. And what about his "man on the street" argument regarding coverture? Well, one could turn to the old Webster's dictionary from 1828 again. It defines "coverture" as "the state of a married woman," which is "considered as under cover, or the power of her husband." I have a feeling that more than one man on the street back then would be familiar with this definition of marriage and would have cited it if asked.

Having constructed a selective history of marriage in the United States, Roberts turns to the specific progress of the gay marriage equality movement. He paints a picture of democratic progress, with several states expanding marriage to include same-sex couples through various methods including court rulings and legislative acts. He concludes Section I with a nod to the decision below by the Sixth Circuit:

For what it's worth, this subsection should have probably been the intro to Section II rather than at the end of Section I, but nobody asked me.  So I'll cover it here, quickly. Roberts is painting a picture of an underlying, positive democratic process, the inevitable outcome of which would have been full marriage equality sooner rather than later if gays and lesbians had just been a little more patient and waited it out. But that simply wasn't the case in the four states before the court (Kentucky, Ohio, Tennessee, and Michigan) and wasn't the case in huge swaths of the South and West. This benevolent democratic momentum was a myth.

I'll talk more about this in later posts.

Dignity is Not a Slippery Slope

Picking up steam in the wake of Obergefell v. Hodges is the notion that Justice Anthony Kennedy's apparently expansive concept of "dignity" creates problems of application in the law and interference with other rights.

Jonathan Turley writes:

But is it true that Kennedy found a right to marriage based on dignity but not on status? Turley appears to argue that Kennedy's reasoning includes no equal protection aspect at all, that how we define dignity - and how we subsequently protect it - has nothing to do with the identity of the person seeking it. I'm not convinced.

I'm not convinced because Justice Kennedy wrote a lot more than just the word "dignity" in Obergefell. If you read what he actually wrote, you can see that he invokes dignity in very specific ways that involve both limited situations and identifiable groups of people.

Justice Kennedy invokes dignity for the first time in Obergefell on page 3, in a discussion of history:

Marriage promises dignity to men and women without regard to their station in life. This is the language of equal protection. Marriage promises dignity no matter who you are. Kennedy is making a key point here: we already extend dignity to different-sex couples. He's not creating a right to dignity, he's identifying one that already exists but is being denied to a specific group.

Justice Kennedy's next invocation of "dignity" comes on page 6:

Again, the invocation of dignity is within the confines of equal protection. Men already enjoyed dignity in marriage. It was denied to women. But women, as a group, also have a right to dignity that the law cannot strip on the basis of their sex.

On the next page, Justice Kennedy turns to the history of gay and lesbian discrimination. Again, he defines dignity through an equal protection lens:

He speaks of the dignity of homosexuals "in their own distinct identity," not a nebulous concept of dignity that floats in space to be claimed by anyone who drifts by.

So Justice Kennedy's concept of dignity and its history is intertwined with equal protection: dignity is a right that has regularly been denied to discrete groups of people based on who they are.

Dignity is also situational. Justice Kennedy confines his definition to a narrow set of decisions that, again, are intertwined with the concept of equal protection:

Read carefully the second sentence. The concept of dignity applies to "intimate choices that define personal identity and beliefs." First, this language is not really broad, especially considering the cases to which Kennedy cites. Eisenstadt and Griswold were reproductive freedom cases, which declared that married and unmarried people have a right to make contraceptive decisions for themselves without interference by the government. Kennedy similarly defined dignity in this narrow way in Lawrence v. Texas, which found a dignity right in private, consensual sexual relations. So this dangerous slippery slope of dignity has only really been found in sex and marriage.

Second, the choices encompassed in the dignity right "define personal identity." This is equal protection language again. And there's more:

As Kennedy is sure to say, his identification of a dignity right "is true for all persons, whatever their sexual orientation." The gay marriage bans challenged in Obergefell interfered with a specific group's fundamental right to marry, which infringed "their autonomy to make such profound choices."

Near the end of his opinion, Kennedy engages in a discussion of equal protection that has frustrated commentators (and the Court's dissenters) because it appears cursory. The Supreme Court has established extensive doctrine to identify and scrutinize equal protection violations, but Kennedy's opinion barely addresses any of it. Instead, he talks in broad, historical terms, about how marriage has changed over time to include more people and more autonomy.

This passage shows once again that Kennedy's concept of dignity requires equality of application:

Coverture laws denied "equal dignity," not just "dignity" in general. Marriage laws, historically, protected the dignity of men to make intimate decisions for themselves about who to create a family with. But they denied that freedom to women, who became property in marriage. Like all the other places Justice Kennedy invokes dignity in Obergefell, this concept cannot exist independently of the rights of others. One person's dignity creates a baseline for the dignity of others - where one person has freedom to make intimate choices, those intimate choices cannot be denied to someone else based on their identity.

Kennedy's final use of the word "dignity" appears in his soaring final paragraph:

The phrase "equal dignity" is critical to Kennedy's concept of the right. The law already protects the dignity of different-sex couples to make the intimate and personal choice to marry, a right that has long been considered fundamental. The law must also protect the dignity of same-sex couples to exercise this right.

Jonathan Turley says "it is not clear what a right to dignity portends," and then offers some rhetorical questions:

First, it is not "clearly undignified" to be denied a wedding cake. Kennedy's concept of dignity, as he has spelled it out in his opinions, does not extend to being served by a business. And it also doesn't extend to feelings of indignity by a business owner having to serve someone they find objectionable. Dignity includes having consensual sex, having (or not having) children, and marriage. That's about it. Those are the key situations involved in all of Kennedy's opinions that invoke a right to dignity. They all involve intimacy and the creation of a personal identity as a partner, spouse, and parent.

Regulations of business, such as public accommodation anti-discrimination laws, have long been held to be constitutional without regard to "dignity." First of all, businesses are voluntary enterprises. And though decisions about sex and marriage are also voluntary, the operation of a business does not seem like it would qualify as the kind of intimacy that Justice Kennedy's opinions seek to protect.

Second, Justice Kennedy's concern for dignity arises where it has been categorically denied to a group of people based solely on their identity. This "dignity" does not exist independently from equal protection. Do anti-discrimination laws deny the dignity of bigoted business owners as a group? How would you classify this group? By their discriminatory actions alone?* Which ones? Anti-discrimination laws certainly don't single out anyone. You can't argue that anti-discrimination laws single out Christians, because (1) the laws apply to everyone equally, and (2) lots of Christians don't discriminate and many argue that their faith actually prohibits it. So whose dignity do such laws infringe?

It is interesting that affirming a right to equal dignity and autonomy within the very narrow confines of intimate, family decisions could lead observers to propose yet another parade of horribles, especially astute observers such as Jonathan Turley. That's Justice Scalia's job. A fair reading of Kennedy's "dignity" opinions - Lawrence, Windsor, and Obergefell - shows that he does not propose an expansive, nebulous right to dignity, but a narrow right to key personal decisions which require the equal protection of the law. Calm down, Chicken Littles.

*Consider that Lawrence overruled Bowers v. Hardwick, which defined homosexuality not as an orientation, but as voluntary actions. So the idea that a classification can turn solely on behavior is already questionable.

The Obergefell Dissents - C.J. Roberts Introduction

In a series of posts, I'll share some thoughts about each of the four dissents to Obergefell v. Hodges.

The "lead" dissent to the case of Obergefell v. Hodges was written by Chief Justice John Roberts. It is actually longer than Justice Anthony Kennedy's majority opinion. Because of its length, I'll discuss it in parts. This first entry covers the introduction (pages 1-3).

Had the Chief been in the majority, he would have written the controlling opinion of the Court. I assume, based on the style of his dissent, that the opinion would have been very similar in content and style. Unlike his fellow dissenters, the Chief takes a very broad, tempered approach. He is at times quite critical of the majority, but, as is his style, he avoids intentional hyperbole and insults.

His dissent opens with praise for the "strong arguments" of the petitioners (the same-sex couples from Kentucky, Tennessee, Ohio, and Michigan). But he describes those arguments as political, not legal. Like Judge Jeffrey Sutton in the Sixth Circuit, the Chief immediately frames the question as a legislative one, not a judicial one. As a legislative question, it rests outside the realm of the Court. "Whether same-sex marriage is a good idea should be of no concern to us," he writes.

Of course, like in the Sixth Circuit, this was not at all the question before the Court. I'll elaborate on that further as we go along.

There are a lot of problems with this paragraph. First, the petitioners did not argue that anyone has a right to "make a State change its definition of marriage." States retain the absolute right to define marriage however they want to define it. But the Constitution gives us individual rights which must be respected by the government, so any definition a state chooses is at least somewhat constrained. Obviously this means some definitions of marriage are not permissible (like a ban on interracial marriage or a requirement that Christians marry only Christians). But acknowledging that states must respect individual liberty does not mean individuals have a right to force states to do anything affirmative, like "change their definition of marriage" to any particular possibility.

The second half of the paragraph relies on the usual ahistorical deceit that the "traditional" marriage of one man and one woman has been a universal, global institution forever. That just isn't true.

The last sentence is also misleading. It treats the choice to expand marriage to include gays and lesbians as a step beyond a benign baseline of opposite-sex marriage. That baseline is not benign. It is restrictive. The laws challenged in Obergefell explicitly exclude a distinct group of people from civil marriage. The true question in the case was whether such exclusions are constitutional, not whether states have an abstract freedom to expand marriage if they want to. Of course they do. Nobody challenged that.

The second half of the next paragraph introduces a theme that will come up more clearly in the last section of the Chief's dissent:

The Chief suggests that the true victim here is the abstract process of democratic debate, and, by extension, that gays have been harmed by its foreclosure. This is of course ridiculous, but I'll discuss why later when I tackle Section IV of his dissent. Simply note here the turns of phrase: "closed the debate," "stealing the issue," and "cast a cloud." These are the harms the Chief seems most worried about, not the purposeful exclusion of a group of people from a fundamental civic institution.

He goes on to criticize the majority for imposing its own personal political whims on the country. Then, this:

This is a very problematic passage, as other commentators have noted. Who do we think we are? We're Americans in 2015. It is a very curious argument that we should be bound forever to the civic rules of an ancient people who engaged in ritual human sacrifice and cannibalism in isolated, agrarian societies.

But absurd historical comparisons aside, what about the idea that including gays and lesbians in civil marriage "transforms" the social institution? This is a typical retort of gay marriage opponents, but it doesn't make sense. The institution of opposite-sex marriage persists even after Obergefell. Straight people are still allowed to be married. Existing straight marriages remain undisturbed. All the wonderful aspects of "traditional" marriage remain fully intact, its purposes affirmed, its benefits in place. It is simply illogical to argue that the institution of marriage may only be preserved by excluding gays and lesbians from sharing in it.

In the next paragraph, the Chief cites Lochner v. New York for the first time. Lochner will get more attention in a later section of the dissent. For now, I'll turn to the second half of the passage:

Another key deceit on which the Chief's dissent turns is that there was a "vibrant debate" in the states before the Court. In Kentucky and the other states involved in Obergefell, there was no debate. The debate in Kentucky, if it can be called that, lasted just a few days in 2004. In a panic following the legalization of gay marriage in Massachusetts, the Kentucky General Assembly quickly and forcefully pushed through a proposed constitutional amendment to forever exclude same-sex couples from marriage. By November of that year, the democratic process was effectively closed. Regardless of whether some other states were legalizing same-sex marriage legislatively or whether national opinion polls were showing a shift in public sentiment in the lead up to Obergefell, there was no "vibrant debate" in the states actually before the Court. There was no realistic chance that gays and lesbians in the Sixth Circuit would ever enjoy marriage rights. Not within many decades, at least.

The Chief then concludes his introduction with the following:

As I mentioned before, both the Chief and Judge Sutton in the Sixth Circuit base their opinions on a fundamental reshaping of the question before their respective courts. They claim the issue is "who gets to decide?" rather than, "is the decision constitutional?" Nobody challenged whether states can make domestic relations decisions. The challenges in Kentucky and elsewhere weren't declarative actions. They were suits challenging existing laws that took force after the states made decisions on the grounds that those decisions violated the Constitution.

This reshaping of the question was the most frustrating aspect of Judge Sutton's opinion in the Sixth Circuit, and was frustrating to see endorsed by the Chief Justice in his dissent. If you approach marriage restrictions as a question of "who decides," it becomes extremely difficult to reconcile the answer with important precedents like Loving v. Virginia. Had the Court in 1967 merely asked, "who gets to decide if marriage can include interracial couples?" the obvious answer that it is the state's decision to make means Loving was incorrect. Though the Chief (and Judge Sutton before him) go to some lengths to distinguish Loving on the basis of biology, extrapolating their underlying logic compels the conclusion that it is constitutional for states to limit the marital institution to couples of the same race, or to the same religion, or in any other way that the democratic process compels.

I'll explore this more in future posts as I discuss the remaining sections of Chief Justice Robert's dissent.