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.