Slowly but surely, I'm analyzing the dissenting opinions to Obergefell v. Hodges, the Supreme Court case that struck down state bans on gay marriage. I'm still working on the longest of those opinions, the one written by Chief Justice John Roberts, section by section. It's the longest one, and there is a lot to talk about. Previous installments are as follows:
Today, I turn to Part IIB, where the Chief Justice does his best to show that all the cases declaring a "fundamental right to marry" don't really create a fundamental right to marry, and even if they did, it wouldn't apply to gay people simply because they picked the wrong kind of people to fall in love with. And even though our concept of marriage has dramatically changed over time, it hasn't really changed, and changing our concept now would actually change the institution itself and then it wouldn't be marriage anymore. Something along those lines.
Justice Anthony Kennedy's majority opinion spent a lot of time talking about past cases which repeatedly declared there to be a "fundamental right to marry for all individuals." Specifically, he leaned on Turner v. Safley, Zablocki v. Redhail, and the biggest one, Loving v. Virginia. The way the majority saw it, if the states in those cases needed a really good reason to prohibit child support deadbeats, prisoners, and interracial couples from marrying, states today should also need a good reason to prohibit same-sex couples from marrying. Chief Justice Roberts disagrees. Those cases don't require that conclusion at all, he says. Those cases:
This is easily the most "lawyerly" passage in the entire dissent. Portraying these two concepts as mutually exclusive is wrong and misleading. Those cases did consider marriage to be a fundamental right for all people, and therefore, states must justify any barriers that they impose on access to marriage. One of those barriers was based on the race of the partners. One was on incarceration status. Another was on the status of child support payment. One might think that gender, as another status used as a barrier, would similarly need a compelling or important justification. Not so, according to the Chief Justice.
"None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman," Roberts writes. And just as Judge Jeffrey Sutton of the Sixth Circuit did before, Roberts goes to great lengths to distinguish Loving, the most obvious case supporting the position of the same-sex couples in Obergefell:
This is a tad confusing, because the interracial marriage ban challenged in Loving was not "at common law,"and did, very specifically, criminalize such marriages and declare them summarily void in the state. Declaring a specific type of marriage instantly void is of course not explicitly defining marriage to be something else, but it has the same practical effect.
At any rate, even conservative Justices recognize now that removing racial barriers to marriage didn't change what marriage was, but a lot of people didn't think that in 1967 and before. In 1955, the Supreme Court of Virginia upheld its interracial marriage ban in a now-infamous decision called Naim v. Naim:
The institution of marriage has from time immemorial been considered a proper subject for State regulation in the interest of the public health, morals and welfare, to the end that family life, a relation basic and vital to the permanence of the State, may be maintained in accordance with established tradition and culture and in furtherance of the physical, moral and spiritual well-being of its citizens.
We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.
197 Va. 80, 89-90 (1955).
Before Loving, many judges believed that marriage, as "a relation basic and vital to the permanence of the State," had to be kept segregated to "preserve the racial integrity of its citizens." It was strongly believed that allowing whites to marry blacks would "change what a marriage was." Not only that, integration would "weaken or destroy the quality" of citizenship itself!
Chief Justice Roberts' version of marriage law history is that of a revisionist. But he must portray history this way or his argument falls apart. He ignores the incredible cultural battle waged when Mildred and Richard Loving sought recognition of their marriage in Virginia just a few years after Naim v. Naim, reducing it to a "well duh, interracial marriage was no big deal" throwaway distinction of their case. Sure, Chief Justice Roberts seems to say, the Loving's sought the same old marriage we've always had, but not gay couples. They seek something totally different.
The right the Obergefell petitioners seek, says the Chief Justice, is not the fundamental right to marry as the Supreme Court has repeatedly called it, but a new right, a "right to make a State change its definition of marriage."
By that same logic, didn't the Lovings seek to make Virginia change its definition of marriage as only between people of the same race? The Chief Justice says no, because Virginia didn't explicitly define marriage that way. But if a state law specifically prohibits interracial marriage, isn't it effectively defining marriage as an institution between only people of the same race?
Regardless, the argument that the Lovings didn't seek to change the definition actually lends support to the couples in Obergefell. In Virginia, one example of marriage is a marriage between two people of the same race. That kind of marriage still exists and is still the most predominant example of marriage across the country. Only the barrier to an additional form of marriage was struck down. Marriage itself - the civil bond between two people to share property, medical decision-making, and maybe children - wasn't changed at all. Access to it was merely expanded.
The couples in Obergefell merely sought access to the same institution long enjoyed by different-sex couples, just as the Lovings sought access to the same institution previously only enjoyed by same-race couples.
In the next subsection, Chief Justice Roberts distinguishes cases cited by the majority such as Griswold v. Connecticut (contraception by married couples), Eisenstadt v. Baird (contraception by unmarried couples), Olmstead v. United States (wiretapping), and Lawrence v. Texas (gay sexual activity). These are "privacy" cases, he writes, that dealt with criminal statutes - government intrusions different from a civil ban on gay marriage. They don't apply to restrictions on civil benefits.
What Chief Justice Roberts calls "privacy," Justice Kennedy calls "autonomy." Those concepts are related but not exactly the same. Griswold and Eisenstadt gave sexually active different-sex couples the autonomy to choose contraception instead of childbirth without the threat of government penalty. Lawrence gave gay couples the autonomy to engage in sexual activity and not have to face arrest and jail time for it. Those cases, in Justice Kennedy's view, carved out a realm of personal autonomy that should be free of unjustified government regulation. So, too, marriage. Because marriage is a fundamental right, even a civil restriction with no criminal penalty is still a type of government intrusion that must be justified by an important or compelling government purpose. "It's always been this way" is not enough.
"Autonomy," the way Chief Justice Roberts sees it, however, is a gateway to anarchy:
If asked to list as many examples of "free-wheeling autonomy" as I could, "getting married" would probably not show up on the list. Marriage, for many people, signifies the end of the free-wheeling period of their life in exchange for permanence and stability. It is odd to frame the desire of same-sex couples to get married - something different-sex couples, at least of the same race, have always enjoyed with minimal restrictions - as some kind of wild idea that finds support in just one out-of-favor case.
Roberts acknowledges that "the majority does not suggest that its individual autonomy right is entirely unconstrained." But he dismisses those constraints as arbitrary, in line only with the majority's "own reasoned judgment," similar to the kind he repeatedly criticizes in Lochner. But the autonomy the majority recognizes is not something new. It's an old form of autonomy already - and repeatedly - recognized by the Supreme Court as fundamental. We're talking about the autonomous right to get married, not something like the novel, autonomous right to suicide claimed in Washington v. Glucksberg.
This obvious fact nearly unavoidable, Chief Justice Roberts turns to slippery slopes as a distraction:
First of all, if Chief Justice Roberts dislikes plural marriage and doesn't believe there's any Constitutional basis to strike down its prohibition, he should probably not make future petitioners' arguments for them. That tactic backfired notoriously on Justice Scalia in his dissent to Lawrence v. Texas in 2003:
Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution?" Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
539 U.S. 538, 604-605 (2003). Not coincidentally, these words were cited by many district court judges when they struck down state gay marriage bans prior to Obergefell.
Chief Justice Roberts attempts to disarm critics of his parade of horribles, making sure to say that he does not "mean to equate marriage between same-sex couples with plural marriages in all respects," and noting that "there may well be relevant differences that compel different legal analysis." I would say the analysis would be the same: all individuals have a fundamental right to marry who they want to marry. If they want to marry more than one person simultaneously, and the state prevents them from doing so, then the state has to justify the restriction. Maybe the states have good reasons to prohibit plural marriage, and they'll win some future case. But in this case, they couldn't produce any good reasons to prohibit same-sex marriage. No justification the states trotted out could pass any form of scrutiny except in the eyes of the Sixth Circuit and the minority of dissenters in Obergefell. Plural marriage may fare worse, but simply saying that the marriage some people seek is not really marriage at all even though it involves all the same basic elements (love, commitment, property sharing, children) is disingenuous and hopefully will not carry the day in some future plural marriage case.
In the final subsection of Part IIB, the Chief Justice takes on "the harm principle," which the majority in Obergefell only touched on but Judge Richard Posner of the Seventh Circuit fully embraced in his opinion striking down the gay marriage bans in Indiana and Wisconsin. In short, the principle generally holds that a government regulation is not rational when it restricts activity that does not harm the actor or third parties. In other words, regulations based on morality or tradition alone cannot withstand any form of scrutiny when they regulate non-harmful behavior.
For pragmatists like Judge Posner, this seems quite obvious: why should government be allowed to regulate non-harmful personal choices just because it wants to? But to supporters of the majoritarian imposition of moral codes, this is crazy talk. To them, the arbitrary beliefs of the majority can interfere with personal autonomy if the majority so chooses - even when only a small, identifiable minority of the population is specifically targeted for this interference. Like when Texas banned consensual sexual acts between gays and lesbians but not those exact same sexual acts between straight people.
To Chief Justice Roberts, the arbitrary beliefs of judges who favor individual autonomy over collective moral imposition must defer to the arbitrary beliefs of voter majorities:
If the majority in Obergefell "overlooks our country's entire history and tradition," then so did the Supreme Court in Loving v. Virginia. Anti-miscegenation laws, after all, dated from before the American Revolution. By that same logic, the Court in Brown v. Board of Education overlooked America's entire history and tradition of slavery and then Jim Crow segregation. Not only overlooked it, but repudiated it in full. But Chief Justice Roberts cites favorably to those revolutionary decisions as not just welcome but obvious. The distinctions he makes between the rights sought in those cases and the right sought by the Obergefell petitioners thus ring hollow. What we viewed as integral to both education and marriage at the time Brown and then Loving were decided - total segregation of the races - we now view as obvious governmental overreach without legitimate or compelling justification. Roberts thinks that the repudiation of history and tradition was fine in those cases but not in the one before him.
The Obergefell majority did not overlook American history and tradition. It fully acknowledged our history and tradition of inequality and moral intrusion into harmless personal autonomy. But it did repudiate it, and rightly so.