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.