Love Wins, Law Loses

I want to address the gay marriage Supreme Court decision in Obergefell v. Hodges, which you can read in its entirety here.  I highly recommend reading the majority opinion and Chief Justice Roberts' dissent because I think that gives you a good sense of how Constitutional law actually works. The law is not as easy as, "this is the right thing so we should do it." Theoretically, the law is supposed to provide the rules that we all agree to follow. If you don't like them, then you have to change them. In this case, as much as I support gay marriage (and have for years), I have come to the conclusion that Justice Roberts is correct on the law. And this matters. We live in a democracy. Justice Kennedy (who has also decided that money doesn't corrupt people) just decided a sweeping change to social policy for the entire country of over 300 million people. I like his choice, but that doesn't mean it was the right choice. Here's why. (NOTE: All block quotes are from the dissent of Chief Justice John Roberts.) 

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Many liberal pundits have decried the dissenters as homophobes. That may well be true for Justice Thomas (although his writing in Lawrence v. Texas where he called anti-sodomy laws "silly" casts doubt on that), and Justice Scalia (for whom it is almost certainly true), but Justice Roberts makes clear from the start that he doesn't necessarily disagree with extending marriage rights to gay people. It's the method that he takes issue with. And you should as well. 

Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

You cannot intelligently argue with this. If you want someone to hate change, force it on them. It's that simple. The clear tide of history was against homophobia. We did not need the Supreme Court to step in and make up law to get there. Other than fundamentalist Christians, I have no friends under the age of 35 who are opposed to same-sex marriage. Gay people were going to be able to marry nationwide within five or ten years. Ok, maybe not in Alabama, but who wants to live there anyway? 

Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

Here is the crucial point that most laypeople (and many not so laypeople) are struggling with. No state was excluding people from marrying because they were gay. Gay people were trying to do something that was not called "marriage." That seems a semantic difference, but legally it is very important. In Loving v. Virginia, Virginia had a law that prevented white people from marrying non-white people (it did not ban interracial marriage between minority groups). That law said that people wanting to get married could not if they looked a certain way. It did NOT define marriage as between one white person and another white person. Indeed, minorities could marry as well and legally had a much greater diversity in choices (anything but white people). The challenged law in Obergefell said that if you are two men, your union is not a marriage. No two men or two women could get married just as no man is allowed to use a woman's bathroom (very few people would consider that unconstitutional even though women's bathrooms are invariably cleaner, smell better, and are more likely to feature potted plants). We are not talking about gay people living together (as Kennedy's "living in loneliness" nonsense implies) or having sex (that was decided in Lawrence v. Texas, another Kennedy opinion). Prior to this decision, gay people could do whatever they wanted together except marry another man. I'm straight, and I couldn't marry another man either though. 

As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. 8 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting Loving, 388 U. S., at 6–7. The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6. 

This is true. 

The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450.

 At this point, the constitutional law gets really thick, and if you aren't a law student, lawyer, or legal scholar, you probably cannot fully understand what Justice Roberts is talking about here. The simplest explanation I can give is that our Constitution is a poorly drafted document that is loaded with ambiguities. One consequence of that is that the Court has to flesh out what phrases like Due Process mean because the people who wrote it were not at all specific. The danger with Due Process is that can allow Supreme Court justices to make up law, and sometimes you are going to like that manufactured law. Other times you aren't. That's why we have representative government though. At least if I don't like a law, I can try to change it. Once the Supreme Court makes something Constitutional, it's very hard to change (sorry Mike Huckabee). The Dred Scott decision was overruled by the most devastating war in American history. So to prevent the Court from making up law as it goes, the Due Process Clause is only supposed to be deployed when some fundamental right rooted in the rest of the Constitution (like the right to a fair trial) or in our "traditions" is at stake. Neither the right to own a human being as property nor the right for one man to marry another man are rooted in this country's (as a whole) law and traditions. Slavery was deeply rooted in the South, and gay marriage is rooted in several of our states (and even those roots are pretty shallow at this point). If you don't like that the Supreme Court told northern states to change their definitions of "property" to include "black people" so that Southern slave owners could have Due Process (and you shouldn't), then for the same legal reasoning, you shouldn't support the Court forcing states to change their definitions of marriage to support Due Process rights of homosexuals. STRESS: The policy behind those two things are obviously very different, but the Supreme Court is not a policy-making branch. That's Congress' job. You, social justice warrior in the back. Calm down. 

Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added). To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences 20 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”). 

For the non-legal person, understand that making reference to Lochner is the Supreme Court way of saying "you fucking idiots have no idea what you are doing." It is the most reviled decision among justices and for good reason. In Lochner, libertarian-minded justices essentially tried to make their economic policy a part of Due Process based on the freedom of contract. That should sound really familiar to the majority in Obergefell except that at least the word "contract" appears elsewhere in the Constitution. And this is really the danger. Gay marriage activists are loving this decision, but what happens if the Supreme Court decides that freedom of contract is once again a Due Process right? The precedent has certainly been set. And if that happens, say goodbye to basically every tenant protection, worker protection, and restriction on big business that exists in America. Supreme Court justices must be bound to the Constitution in some way. They have to at least try. Once you start letting them make things up entirely out of whole cloth, even if you like what they are sewing at the time, you are headed down a very problematic and undemocratic road.  

The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” Ante, at 25. On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period. 

Yes. Bad idea. 

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015). I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

This is the knockout punch in my opinion. Roberts doesn't use my freedom of contract example, but he makes the same point (probably to better effect). Right now, a polygamist is preparing a lawsuit that will rely almost entirely on this precedent. What can the courts do? What argument is there against polygamist marriage? None. Not a legal one anyway. If the definition of marriage cannot be restricted to one man and one woman, why can it be restricted to two people? "I think it's icky" is not a legal argument. "Sometimes polygamists subjugate women" is not a good argument. What about one person and one animal? That sounds ridiculous, but make the argument against it without using "it's icky." Go ahead. You can't. If I want to marry my dog, that is my way of expressing myself and having greater intimacy with a conscious creature that I may love more than any other human. If I want to marry every member of my living family, why do I not deserve Due Process as well? This is going to get crazy, and you can quote me later when it does. 

When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting). But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

A devastating point. For me personally, this is the saddest part. Gay marriage is going to be another abortion-like issue in America, and it shouldn't be. As I said above, we were almost certainly within a few years of almost every state legalizing gay marriage because their people CHOSE to do so. Even Ireland is probably going to have an abortion referendum soon that will expand that right. That's how democracy should work. When the Court makes stuff up and decides for everyone what laws SHOULD exist, it forecloses the chance for people to come to the right decision on their own, and it erodes the confidence people have in the judiciary to interpret law, not make it. 

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.