The Obergefell Dissents - C.J. Roberts Part IIA

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. The first installment, covering the introduction, can be found here. Part I of his dissent is covered here.

Having misleadingly cast marriage as a uniform, unchanging institution free of interference or modification until the very recent past, Chief Justice Roberts turns his attention toward the Court, which he believes is overstepping its bounds.

The Court, he says, "resolves these cases for petitioners based almost entirely on the Due Process Clause." I have contested that idea to some extent in a previous post, but for the purposes of this review we'll take the Chief Justices' word for it. The Due Process Clause protects us from state interference with our "life, liberty, and property." It's not that the state can't interfere with those things, but it has to follow a uniform method and has to have a reason to do so. The quality of the reason rises from merely "rational" to "compelling" depending on the liberty at stake.

"Enumerated" rights - those specifically identified in the constitution - are the most important and therefore require the most compelling justification for interference. The right to vote is a good example. Generally, liberties that are not identified in the constitution get less protection. Your liberty to run a business, for example, can be regulated as long as the government has a rational reason to do so.

But marriage occupies a unique area of "substantive" constitutional liberty. The Supreme Court has long considered a right to marriage to be "fundamental" even though it is not named in the constitution. In 1888, the Court ruled that marriage was "the foundation of the family and society," and in 1942, it called marriage "fundamental to the very existence of the race." In Loving v. Virginia, the Court said, in no uncertain terms, that "the decision to marry is a fundamental right." As a fundamental right, the state has to have a compelling reason to interfere with it.

In Obergefell, the majority concluded that Kentucky and other states lacked a compelling reason to interfere with the marital rights of same-sex couples. But Chief Justice Roberts doesn't think that the members of same-sex couples have a right to marry. He bristles at the Court's opposite conclusion, and argues that they've gone too far:

Here Roberts invokes the sinister cloud of Lochner, a case that still divides scholars and policy wonks. We'll talk more about that as Chief Roberts does. But first, note that he casts the Obergefell decision as legislative, not judicial. This is what people usually mean when they accuse judges of being "activist."  Also note the crazy idea that a judge should decide an issue of constitutional law on the basis that people will benefit from exercising a certain right.

But I digress.

Chief Justice Roberts continues with a brief discussion of substantive due process and fundamental rights, of course being sure to dig at the majority for invoking a nonexistent "Nobility and Dignity Clause." Not very subtle. And neither is this:

This would be a fair criticism in 1888, when the Supreme Court first declared marriage and procreation to be fundamental liberty interests. Or in 1803, when Chief Justice John Marshall declared that the job of the Supreme Court is "to say what the law is." But that ship has long sailed. "Unelected federal judges" picking and choosing among rights to determine which is fundamental and which isn't is something they've been doing for a very long time. Take, for instance, a much more recent case:

In Glucksberg, the plaintiffs argued that Americans have a fundamental right to decide the terms of their own death, which means the state cannot ban assisted suicide without a compelling reason to do so. Even though the Supreme Court rejected that argument, it agreed to hear it in the first place, which means a bunch of unelected judges took it upon themselves to determine whether a right was fundamental or not. Even though the alleged right was rejected in Glucksberg, the case doesn't really support Chief Justice Roberts' apparent argument that judges shouldn't be deciding what rights are fundamental in the first place.

Then Roberts takes a personal jab at Justice Kennedy, the author of the Obergefell opinion, by citing an address Kennedy gave to Stanford University in 1986 previewing and agreeing with the rationale of Glucksberg. Of course, Kennedy in 1986 said that not all rights are fundamental, not that unelected judges had no right to decide the question. His Obergefell opinion is not inconsistent with that.

To illustrate his point that letting judges decide things like constitutional rights is dangerous, Roberts next brings out the big guns:

Dred Scott is easily the most reviled opinion in Supreme Court history. It's also regularly invoked by opponents of gay marriage, who routinely conflate an archaic and brutal right to retain human beings as property to the morally unambiguous right to consensually marry the person you love (a right which has routinely been upheld by the courts for opposite-sex couples without any reference to Dred Scott). Refutations of this comparison are many and worth reading. I won't belabor the point here. Suffice it to say that any time a court recognizes a right for others that some people find icky or disruptive to the status quo, ol' Dred Scott gets dragged out. Which is especially ironic since Dred Scott upheld the antebellum status quo of slavery rather than carve out a "new" right like same-sex marriage. Had Dred Scott declared that black people had, in 1857, a fundamental right to freedom from slavery, that would have been some serious judicial activism.

Chief Justice Roberts then shifts gears to another controversial Supreme Court relic:

If Chief Justice Roberts' upholding of the health insurance mandate in the first Affordable Care Act case cut against his conservative credentials and reputation, his invocation of Lochner as an example of judicial overreach isn't going to help. Lochner is beloved among libertarians who believe the state should need a compelling reason to regulate the affairs of labor and business, not a merely rational one. Lochner has also been favorably discussed in conservative judicial opinions, such as an entertaining concurrence in a recent professional licensing case by Twitter celebrity and Texas Supreme Court Justice Don Willett. (But don't get the wrong idea, Lochner is still disliked by most, and is still called "horrendous" by some.)

Roberts, sounding more like a New Deal Progressive than an appointee of George W. Bush, instead cites favorably to the Lochner dissenters:

That Social Darwinism Holmes rejected in Lochner he fully embraced twenty-two years later in Buck v. Bell. With Holmes writing for an 8-1 majority, the Supreme Court upheld Virginia's eugenics law, which mandated sterilization of the mentally disabled.

It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

274 U.S. 200, 207 (1927).

Holmes was a notorious statist and authoritarian. He regularly deferred to majority sentiment, no matter how heinous or unfair to democratic minorities. And as he showed in Buck v. Bell, he was more than happy to make value statements when weighing the rights of others to decide what was "good for them and for society," as Chief Justice Roberts puts it. And Holmes was notoriously contradictory, too, writing expedient and inconsistent dissents like that of Adkins v. Children's Hospital of D.C. (to which Roberts also favorably cites), where he said "the criterion of constitutionality is not whether we believe the law to be for the public good." It is quite difficult to reconcile such a statement with his opinion in Buck just five years later. Holmes may have hated substantive due process, but he certainly wasn't above making judicial judgment calls about the public good.

But back to Lochner. Chief Justice Roberts goes on to say that it led to a parade of horribles where the Supreme Court was recognizing liberty rights all willy nilly without regard for the benevolent whims of majority rule. To some extent it is true that the Supreme Court's substantive due process legacy is scattershot and arbitrary. But the post-Lochner "striking down of nearly 200 laws" is an old myth, according to Lochner's current biggest fan, libertarian author David Bernstein. But even if it isn't a myth, it's hard to see, just based on Roberts' description alone, how the Supreme Court striking down laws as violations of individual liberty is automatically a bad thing. What if those laws really did unnecessarily interfere with individual liberty? Isn't that what we want the Court to do? To defend personal liberty against intrusion by the state?

No, says Roberts. A Court striking down a law as an infringement of personal liberty is to improperly step into the role of the legislature:

What Roberts is eluding to in this section is the rise of "rational basis scrutiny." In cases where a challenged law neither infringes a fundamental right nor discriminates based on a suspect classification (such as race), courts will generally uphold it as long as the law is rationally related to a legitimate government purpose. Economic regulations regularly receive rational basis scrutiny and are regularly upheld as constitutional. But rational basis cases like Lee Optical don't involve fundamental rights, and they don't answer the question of when and how the Court is supposed to determine when a right should be considered fundamental. Their proscription of judicial policy making applies to situations where fundamental rights aren't implicated.

Just two years after Day-Brite Lighting, the Supreme Court unanimously struck down racial segregation, finding a right to equal education in Brown v. Board of Education. Four years after Ferguson v. Skrupa, the Court unanimously struck down anti-miscegenation laws as an infringement of the fundamental right to marriage in Loving v. Virginia. Interestingly, both of these decisions rejected the then-consistent and unbroken interpretation of the Fourteenth Amendment as a mandate for legal, as opposed to social, equality of the races. If the Supreme Court has ever rejected history and tradition more thoroughly than in those two cases, I'm not aware of it. And of course both decisions were derided as judicial activism, as "substituting social and economic beliefs" of judges over legislatures.

Without mentioning Brown or Loving, but acknowledging the obvious fact that the Supreme Court has the power to recognize fundamental rights (since it has many times in the past), Roberts warns that it should do so with strict "judicial restraint." He leans on Glucksberg for the proposition that the only fundamental rights the Court should recognize are those that are "objectively, deeply rooted in the Nation's history and tradition," and "such that neither liberty nor justice would exist if they were sacrificed."

So caution is required, says Chief Justice Roberts:

The cite to Collins is bizarre. Marriage is not an "unchartered area" with "few guideposts for responsible decisionmaking." In Collins, the widow of a sanitation worker argued that her deceased husband, who died down a manhole while working on a sewer line, had a due process right "to be free from unreasonable risks of harm." Tort law recognizes claims for wrongful death, where the negligence or intentional acts of others are held liable for someone's demise. But, as the Supreme Court unanimously ruled, this is not "supplanted by the Due Process Clause." Though it could be held liable for tort damages, the city did not violate a worker's constitutional right to due process by failing to "train or warn its employees about known hazards in the workplace."

There are no past cases that identify the due process right sought in Collins. The petitioner literally sought a new right not previously recognized for anyone. But there are many cases which clearly spell out a fundamental right to marriage (which the Obergefell majority cites and references at length) long enjoyed by different-sex couples. This was the exact same right sought by same-sex couples, not something new.

But sometimes even "new" rights are recognized. Like in Griswold v. Connecticut, where the Supreme Court upheld the right of married couples to make their own reproductive choices free of government interference. It is impossible to argue that Griswold was firmly "grounded in history," since states had long prohibited contraception until then. Which makes Roberts' favorable citation to it at the end of Part II A even more confusing than his reference to Collins:

Griswold recognized a fundamental "right to privacy," which at the time existed neither in the explicit language of the Constitution nor in any sizable body of Supreme Court precedent. But Griswold is controlling precedent now, and the majority in Obergefell cited it favorably as part of the basis for its ruling in favor of same-sex marriage. Roberts' supportive citation to Justice Harlan's concurrence in that case, which pays lip service to judicial restraint but joins a decision breaking significant new ground in the realm of substantive due process, is again indicative of a strange disconnect between the reality of the Court's history and Roberts' opposition to so-called judicial activism.

In Part II B, he illustrates this disconnect more thoroughly, arguing that the well-established fundamental right the Obergefell couples sought to exercise doesn't really apply to them. I'll tackle this argument in the next installment of this series.