Obergefell Grows Equal Protection Teeth on its Second Birthday

In Obergefell v. Hodges, Justice Anthony Kennedy focused primarily upon marriage as a "fundamental right" protected by the Due Process Clause of the Fourteenth Amendment. As such, the states were required to come up with a strong argument why they could deny it to anyone, let alone gay couples. They couldn't, at least not in the eyes of five of the justices, and the gay marriage bans were struck down.

Justice Kennedy didn't totally limit his reasoning to the due process question of rights, however. He did specifically reference the doctrine of equal protection - also required by the Fourteenth Amendment - and said that it and due process are tied together, based on similar principles of liberty and freedom and both protective of dignity and autonomy.

But many observers have criticized Obergefell for focusing too heavily on fundamental rights and not enough on equal protection. 

That's where Arkansas comes in. There, as in most states that I'm aware of, it is customary for the male spouse of a mother to appear on her child's birth certificate. It happens automatically, regardless of whether the husband is really the biological father of the child. There is no distinction for cases of adultery or artificial insemination. If you're a husband and your wife has a child, your name goes on the birth certificate. End of story.

But that wasn't the case for same-sex spouses in Arkansas. If a woman gives birth there and is married to a woman, her spouse's name didn't go on the birth certificate. Her spouse was not automatically considered the parent of the child - at least when it comes to documenting the birth.

Two couples challenged this rule. They won at the trial court level, but the Arkansas Supreme Court, considering the scope of Obergefell, found that the birth certificate rule "pass[es] constitutional muster" and upheld it.

Today, the U.S. Supreme Court summarily reversed that conclusion in Pavan v. Smith, an anonymous "per curiam" opinion. Why? Because Obergefell held that same-sex couples are entitled to "the constellation of benefits that the State has linked to marriage" on "the same terms and conditions" as different-sex couples. In other words, those couples are entitled to equal protection.

"Disparate treatment" is an equal protection term for discrimination. It doesn't get any clearer than that: Obergefell prohibits treating same-sex couples differently than different-sex couples when the state is doling out various "rights, benefits, and responsibilities" of marriage, including the presumption of parentage to the spouse of the birth mother. If husbands who are not biological fathers are entitled to be listed, then wives who are non-biological mothers must be listed. Simple enough.

But it apparently isn't that simple to Justices Gorsuch, Thomas, and Alito. Gorsuch, writing for them all, argued in dissent that summary reversals such as Pavan are only allowed when "the law is settled and stable...and the decision below is clearly in error," and this is not such a case.

Why? Well, first because there is no "constitutional problem with a biology based birth registration regime" standing alone (an overly simplistic conclusion based primarily on the sharply divided plurality decision of Michael H. v. Gerald D.). Second, the plaintiffs didn't directly challenge the artificial insemination provision of the law, just the general rule about "husbands" that excluded same-sex wives, so there was no reason for the Court to cite it as a reason for reversal. And third, the wife who is left off the birth certificate initially can simply adopt the child later and get added that way. 

Finally, Gorsuch says that Arkansas conceded before them that the artificial insemination rule, 9-10-201, would apply equally to same-sex spouses and thus there was not really a controversy for the court to resolve:

Thus, Gorsuch says, "it is not even clear what the Court expects to happen on remand that hasn't happened already." After all, Arkansas was going to list the mothers on the birth certificates anyway. This is much ado about nothing, or at least much ado about the wrong statute.*

But to me, the majority's view is more compelling. The rule that the plaintiffs challenged - the general requirement that a male spouse's name should appear on the birth certificate regardless of actual paternity, but not a female spouse's name, is discriminatory on its face. It treats same-sex and different-sex married couples differently. Under Obergefell, that's not allowed.

I am glad that six members of the Court took the opportunity to give Obergefell some equal protection teeth, especially as states and cities continue to try creative (and hateful) end runs around it. For example, the Texas Supreme Court is still considering whether Houston can deny marital benefits to municipal employees based on the sex of their spouse. Hopefully they will seriously consider Pavan and rule consistently with it.

*Update: As Mark Stern at Slate documents, Justice Gorsuch's recitation of the facts in the case is totally incorrect. Arkansas never conceded that it would list the birth mother's female spouse on the birth certificates. And it made no sense for the plaintiffs to challenge the artificial insemination rule because they didn't want to overturn it, they referenced it in support of their argument that the rule they did challenge - the rule limiting the naming of spouses to "husband" - was pointlessly discriminatory in violation of Obergefell. All of this suggests Gorsuch's opinion is fraught with errors that should be corrected.

Gun Rights Could Survive the Repeal of the Second Amendment

The biggest hurdle to comprehensive restrictions on private gun ownership is the Second Amendment. It has been interpreted to protect an individual right to self defense, and local bans on handguns have been struck down under that interpretation. Other gun limitations have survived (so far), but at a minimum, the Second Amendment preserves a base level of individual armament.

But what would happen if both the Second Amendment and its state constitution counterparts were repealed? Would the government, either federal or state, be able to fully ban private gun ownership? The answer could very well be no for another reason than the one I discussed in my last post.

The Bill of Rights identifies specific individual rights, such as the right to free exercise of religion and the right to a jury trial. These rights are called "enumerated rights" and are entitled to strong protection from government interference. The right to self defense is an enumerated right.

But the Supreme Court has interpreted the due process clauses of the Fifth and Fourteenth Amendments to protect other rights beyond those specifically spelled out by the other Amendments. This process is called "substantive due process," and through it the Court has identified and protected certain "fundamental rights" that are not enumerated but are no less entitled to to strong protection.

One of these fundamental rights is marriage. The Bill of Rights contains no Amendment identifying marriage as an individual right, but the Supreme Court has long recognized that its importance to the exercise of personal autonomy is critical to citizenship and should be protected from unnecessary interference. The most recent case on this topic was Obergefell v. Hodges, which recognized a fundamental right to marry to which all people, regardless of sexual orientation, are entitled. Government therefore needs a very good reason to stop people from getting married.

Obergefell is very expansive in its language, and does not provide any clear test to determine if a claimed right is in fact fundamental. That wasn't really necessary in Obergefell, because the Court held that the marriage right sought by the plaintiffs in that case wasn't something novel but a very old right that had been repeatedly recognized as fundamental for decades. Gay and lesbian couples simply sought equal access to it.

By contrast, in the case of Washington v. Glucksberg, the plaintiffs asked the Court to recognize a fundamental right to determine the terms of one's own death, or, more crudely put, a right to die (through assisted suicide). The Supreme Court unanimously rejected this claim under a two-part test designed to ascertain whether a claimed right can really be considered "fundamental" enough to be protected by the Constitution (despite not being mentioned by it).

The first question is to determine a "careful description" of the asserted liberty interest. For a right to be fundamental it cannot be vague or nebulous. The second question to answer is whether the carefully described liberty interest is "deeply rooted in the Nation's history and tradition."

The Court in Glucksberg rejected the idea that there is a general fundamental right to "self sovereignty" or personal autonomy and that there is a right to end one's own life on one's own terms included in that. "That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." Thus it narrowly defined the liberty interest sought by the plaintiffs as a separate "right to commit suicide" and be assisted while doing so.

Then the Court asked whether a right to commit suicide was deeply rooted in the Nation's history and tradition. Unanimously, the justices answered no. In fact, suicide and assisted suicide had been uniformly prohibited all across the country with nearly no exceptions. Thus, the right sought in Glucksberg was not fundamental and therefore not entitled to special constitutional protection.

There is an argument that Glucksberg has been displaced by Obergefell as the prevailing case on substantive due process, but I'm not convinced for the reason I stated above. Obergefell dealt with a right long previously recognized by the Supreme Court as fundamental. It simply struck down a form of interference with that right. Glucksberg, on the other hand, dealt with a fairly novel asserted liberty interest that had not been allowed or recognized almost anywhere before.

But I digress. The point I'm getting to is that even if you apply the more conservative test and holding of Glucksberg to the question of arms, the likely result is that a right to self defense, or, in the alternative, a right to privately own guns, must be considered a "fundamental right" even if it is someday no longer an enumerated one.

The right to bear arms, or the right to defend oneself, is clearly defined. In fact, it's much easier to define this right if you do so independently from the muddled, confusing language of the Second Amendment itself. A basic right to be armed for self defense is simple and clear cut. Perhaps a right to own private nuclear weapons would not be considered fundamental, but a right to own handguns and rifles certainly would be (since those weapons have always coexisted with the United States).

And a right to private gun ownership is most certainly "deeply rooted" in the national tradition. Private gun ownership predated the Second Amendment and has been allowed - in most states with very few regulations irrespective of the Militia Clause - from the Founding until today. Guns are as American as apple pie (tragically, perhaps).

Under the Glucksberg test, it is difficult to see how a right to bear arms would not be considered fundamental, and therefore retain its protected status despite a repeal of the Second Amendment and all other state constitutional analogs. Granted, a federal amendment explicitly prohibiting gun ownership (similar to the now-repealed Eighteenth Amendment's prohibition of alcohol distribution) would likely cancel out a substantive due process argument.

But if the Constitution were to go silent on the matter, it would be difficult to see how states or the federal government could use the repeal of the Second Amendment to enact total bans on ownership as long as substantive due process remained a viable line of constitutional attack. The Fifth and the Fourteenth Amendments would become the new sources of American gun rights.

Can There Really Be a Conflict Between the First and Fourteenth Amendments?

In his dissent to Obergefell, Justice Clarence Thomas raised the specter of a conflict between First Amendment rights and the Supreme Court's concept of liberty under the Fourteenth Amendment.

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect...
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

Justice Thomas does not specify from where exactly these "demands to participate in and endorse civil marriages" will come, however. If those demands are purely social, from individuals and other religious groups, then they are of no concern to the Supreme Court. The First Amendment protects individual free exercise from government action, not from public criticism or social pressure. Unless the government starts demanding that churches perform certain kinds of weddings (it doesn't currently, has never in the past, and won't in the future), no First Amendment infringement seems possible.

But still, this weak argument aside, could the Supreme Court have created the possibility of a conflict between the First and Fourteenth Amendments? In previous writing I have assumed that such a conflict might be possible (but nevertheless the Fourteenth should triumph over the First). But I have thought more about it and now I'm not so sure a conflict is really possible.

Both the First and Fourteenth Amendments constrain government action. The First Amendment says the government can't infringe our rights to speech, petition, assembly, and religion. And not only is our religious free exercise protected, but we are also protected from any formal establishment of a state religion which might exclude non-believers. The Fourteenth Amendment, for its part, requires that the government provide due process before any deprivation of life, liberty, or property, and that it provide equal protection under the law.

So how, exactly, can these two amendments conflict? The right of someone else to get a state license for their marriage doesn't interfere at all with anyone's personal beliefs. It doesn't compel an individual, private citizen to act in any sort of way, either. Churches can still turn gay couples away. Ministers can refuse to solemnize certain marriages they don't condone. Parishioners can shun whoever they find distasteful. Obergefell changed none of that.

Opponents of Obergefell conceive of only two possible scenarios where a conflict between the First and the Fourteenth Amendment can arise.

The first is the possibility that discriminatory religious organizations might lose tax exempt status. In the case of Bob Jones University v. United States, 461 U.S. 574 (1983), a religious school lost tax exempt status because it prohibited interracial dating among students. This was such a flagrant violation of the legitimate government policy of integration and anti-discrimination that the IRS revoked the school's tax privileges. There's an important distinction here: tax exempt status is not a religious right. It is a privilege extended by the government consistent with larger public policies. Whether a religious organization is tax exempt or not has no effect on the individual religious beliefs of its members or its administration. They are free, as individuals, to oppose interracial (or same-sex) marriages in their individual lives, but they can't discriminate in public and expect to receive public benefits for it.

The other situation is the now-familiar case of county clerks in Kentucky. They are denying marriage licenses either to all couples or just to same-sex couples in protest of Obergefell. The clerks argue that their First Amendment religious rights are infringed by having to issue licenses to couples they dislike. But courts have never recognized a right of public officials to exercise their religious beliefs when acting in their official, public capacity. Clerks can certainly believe whatever they want, and in their private lives away from work they can shun anyone they believe is sinful. But when they're at work as county clerks, they are the government. If there is any constitutional conflict at play, it's perhaps an internal conflict within the First Amendment between the Establishment Clause and the Free Exercise Clause. The Establishment Clause prevents the imposition of religious whim by government officials in order to preserve equality for all. In that way, the First Amendment and the Fourteenth Amendment work in conjunction. They don't conflict.

The Supreme Court has previously explained how the First Amendment and Fourteenth Amendment actually work together to preserve individual liberty from government oppression. In West Virginia State Board of Education v. Barnette, the Court struck down mandatory recitations of the Pledge of Allegiance in public schools. The Barnettes, a family of Jehovah's Witnesses, argued that their personal beliefs relegated the authority of the state below the authority of god. Therefore they could not swear an oath or allegiance to the national flag, as mandated by the public school system. They argued that under both the First Amendment and the Fourteenth Amendment, the government could not single out their children for punishment when they refused to say the Pledge due to their religious convictions.

The Supreme Court agreed with the Barnettes. In doing so, the Justices noted that the First Amendment and the Fourteenth Amendment actually work together, protecting the liberties of individuals from government intrusion and compulsion. The Fourteenth Amendment, rather than an enemy of religious exercise and free speech rights, is a tool for their protection:

In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case.

319 U.S. 624, 639 (1943).

In the two situations above, where modern proponents of theocracy foresee a conflict between the First and Fourteenth Amendments, there is no government action infringing on free exercise. The revocation of tax exempt status does not compel a change in religious beliefs. It may incentivize religious schools to stop discriminating, but it does not force them to do so. They can continue to discriminate, but they will have to pay taxes in the meantime, just like religious individuals who are also free to discriminate but don't get a tax break for doing so.

And the provision of marriage licenses to same-sex couples doesn't stop religious individuals or organizations from hating and shunning gay people or politically opposing such unions. But county clerks do not act as individuals. They are the government, and as such, they cannot use religious free exercise as an excuse to treat some citizens differently and deny government services to them. When they do so, they create a conflict not between the Free Exercise Clause and the Fourteenth Amendment, but between the government and the Establishment Clause.

The Obergefell Dissents - C.J. Roberts Part IIB

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.

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.