We have seen all this before. The Supreme Court takes on an important and controversial case. One side aims clearly at an end-result based on personal and ideological predilections. It knows that it has the votes to win a majority of the court and to impose its decision on the nation. Yet, it is not sure if the desired result actually is in the Constitution or accords with established legal doctrines and precedents. So it picks selectively from existing doctrines and expands them or invents new ones to achieve the desired result. It comes up with a hodge-podge of legal, historical, and psychological reasons or bald assertions that please the partisans on its side but leave people puzzled about where it got its jurisprudence.
That is the question legal scholars will be asking about the Supreme Court’s ruling on gay marriage, Obergefell v. Hodges. Everyone knew what the outcome would be: a 5-4 majority, led by Justice Kennedy, was determined to find a “fundamental right” to same-sex “marriage” in the Constitution. But where would the majority get its legal reasoning, and how honest and persuasive would it be? Here are my attempts to reconstruct the steps in the court’s reasoning and to show that it fits the logic of power more than the logic of jurisprudence.
The main question before the Court was whether the state bans on same-sex “marriages” violated the Due Process and Equal Protection clauses of the Fourteenth Amendment. The first strategic decision of the Kennedy court was to give priority to the Due Process “liberty” clause over the Equal Protection “equality” clause and to treat the latter as a buttress for the former in supporting a fundamental right to same-sex “marriage.” This move was somewhat surprising, since most people referred to the case as “marriage equality” and expected it to be grounded primarily in the Equal Protection clause.
Yet, there were strategic reasons why Justice Kennedy avoided that approach, even in the earlier Windsor case striking down DOMA (2013). If he appealed to the Equal Protection clause to strike down state bans on same-sex unions, he would have had to use the three-tiered system of scrutiny for judging discrimination claims. In examining laws pertaining to sexual orientation, he would have to consider the “rational basis” test for such laws and possibly admit they serve some “legitimate” state interest; or he might have gotten entangled in endless debates about heightened scrutiny. Instead, he opted silently to discard fifty years of equal protection jurisprudence and to treat equality and slights to equality as buttresses for the liberty claim. This strategy also created a convenient smokescreen for hiding the question of where the new right came from—a claim of liberty, combined with a bit of equality, and a bit of dignity and healing “dignitary wounds” were blended to create a new right without insisting on one clear constitutional ground.
The second strategic decision was to refashion the Due Process liberty clause into a new dimension of “substantive due process.” This is a tricky maneuver, and it is hard to follow in Kennedy’s opinion. The advantage of substantive due process is that judges can use it to say liberty contains certain rights that are so “fundamental” they cannot be taken away even by due process or fair procedures. Kennedy’s trick was to redefine the term “fundamental” and then argue that the long-recognized “fundamental right to marry” for heterosexual couples is not so restrictive; it can be extended to same-sex couples; and even though the extension is new and radical, it can be made to appear incremental.
The redefinition of what is “fundamental” is thus the core of Kennedy’s strategy. It is found in section III of the majority opinion, where the essence of marriage is summed up in “four principles” that purport to show that “the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” As in the first strategic decision to drop many years of equal protection jurisprudence, this decision rejects decades of precedents about the meaning of fundamental rights, such as Glucksberg (1997) and Palko (1937). These rulings were designed to prevent courts from creating new fundamental rights easily based on personal preferences. Glucksberg required a two-fold test for rights or liberties to be declared fundamental: (1) they must be “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty … such that neither liberty nor justice would exist if they were sacrificed”; and (2) the court must give a “careful description” of the asserted liberty interest. The two criteria set a very high bar for declaring new fundamental rights that intentionally favored tradition over change and caution over judicial arrogance.
The Kennedy court acknowledged that “Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumspect manner, with central reference to specific historical practices” (p. 18). But it waived away the warning flags, saying those criteria applied to a right to assisted suicide, not to fundamental rights like marriage. Kennedy also argued that other legal restrictions on who could marry, such as a race or being a prisoner or failing to pay alimony, were also struck down, although he failed to note that these decisions left the definition of marriage unchanged.
In arguing for a new view of what is “fundamental” to marriage, Kennedy lists four principles in serial fashion: (1) marriage is a relation based on “individual autonomy” where “two persons can find other freedoms, such as expression, intimacy, and spirituality”; (2) marriage “supports a two-person union unlike any other … [it] dignifies couples by their commitment … and care … [and] responds to the universal fear of lonel[iness]”; (3) marriage “safeguards children and families,” although it is “no less meaningful for those [without] children” and “an ability or promise to procreate is not … a prerequisite for a valid marriage in any State”; (4) “fourth and finally, … marriage is a keystone of our social order,” quoting Tocqueville’s observation that the high regard for marriage in America gives our society its unusual peace and stability. The court’s conclusion is that “there is no difference between same- and opposite-sex couples with respect to [these] principles” and “the limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest” and “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”
This summary of the four principles and the conclusion give a sense of the strange circularity of the whole argument about the fundamental right to marry for all couples. The Kennedy court defined the essence of marriage to exclude any references to mothers and fathers or male and female complementarity in their procreative and parental roles, and it simply asserts its four-point definition to be “fundamental” without supporting evidence. But the meaning of “fundamental” and the essential features of marriage and family are precisely what are at issue; they are contested and need to be proven, not merely asserted (for example, why are “two persons” essential, but not a mother and father?). It is odd that the Kennedy majority is so open to historical change in marital norms when opposing male-female roles and so essentialist when limiting marriage to two committed people. It is also striking in making unsupported claims about new family arrangements contributing to social stability. Its statements are arbitrary, reaching outside of legal or constitutional reasoning to popular sociology.
No wonder Chief Justice Roberts says in his dissent, “the majority’s opinion is an act of will, not legal judgment,” and he repeatedly compares its misuse of substantive due process to the infamous Lochner and Dred Scott cases. The dissent by Justice Thomas is also extremely powerful and thoughtful in pointing out that the Kennedy majority has undermined the natural rights basis of liberty and dignity, as well as the natural law basis of the family; it has made them dependent on what government confers on people, not what they possess by natural right, as the American founders believed. Justice Thomas offers a shrewd insight about the whole movement for same-sex “marriage” when he observes that it is using marriage as a stamp or imprimatur of equal dignity conferred by the state, without explaining what ground for dignity there is beyond the coercive state: “The Constitution contains no ‘dignity’ clause, and even if it did, the government would be incapable of bestowing dignity.”
The final and crucial strategic decision of the Kennedy court was, of course, the decision to try to settle the issue of same-sex “marriage” through the judiciary, cutting short the democratic process and thwarting a vigorous national debate, while endangering the future of religious liberty for its opponents. With its aim of creating new rights and conferring dignity, the Court becomes the despotic agent of change, excluding the legislature and the people, because it alone possesses “new insights” and is the self-appointed vanguard for “correcting inequalities.”
The Court may not be aware that its legal reasoning is mostly bald assertion in dismissing decades of equal protection jurisprudence, established definitions of “fundamental rights,” and the natural law basis of marriage; and its use of personal stories of pain and humiliation suffered by same-sex couples seems genuine. Yet, the dominant impression one gets of the Kennedy majority is arrogance: it knows it has the votes, so it need not worry much about the reasons for its opinion. And, it is counting on the fatigue of the American public, who just wants the issue “settled” and will not care about its dubious reasoning.
In reflecting on the Court today, I am reminded of the ancient Greek Sophists who cynically said, “Justice is the advantage of the stronger,” and who taught that speech is simply rhetoric rather than rational persuasion. If that comparison is accurate, then restoring reasonable jurisprudence to our courts will require a new Socratic revolution by the next generation of legal scholars dedicated to truth above power.