Constitution Day Reflections on the Obergefell Decision

Yesterday (September 17) was “Constitution Day,” and in honor of the Constitution, I would like to present my thoughts on the recent Supreme Court decision regarding same sex marriage.

As many politicians like to say, the purpose of the Supreme Court

is not to write laws, but to interpret them in light of the Constitution. In 1803, in Marbury v. Madison, the Supreme Court ruled that Congress had exceeded its authority under the Constitution in the case of a dispute regarding a political appointment, and in the process established a doctrine called “judicial review.” This concept has always been controversial, since the Court’s power to strike down congressional legislation could easily be misused, but the principle itself has been a part of our republic from almost the beginning.

Since the Constitution delineates certain powers to the various branches of the federal government and reserves the rest to “the states respectively, or to the people,” according to the Tenth Amendment, the Court’s exercise of judicial review as such is not a problem so long as it respects the clear text of the Constitution itself and permits the states and the people to exercise the freedom reserved to them. But what if the Court decides to invent certain rights that are not actually found in the Constitution, declare them to be constitutionally protected, and then interfere with the right of the states and the people to determine those questions for themselves?

This is precisely what the Court did in 1857 in the infamous Dred Scott v. Sanford decision. Scott was a slave from Missouri whose master took him into federal territory where slavery was illegal. Scott eventually returned to Missouri, and sued for his freedom, arguing that once he was taken into free soil he became free, which is what the law stated under the Missouri Compromise. The case went up the appellate process all the way to the Supreme Court, which ruled against him, and in the process declared the Missouri Compromise unconstitutional. Chief Justice Taney’s justification for the ruling was a legal theory known as “substantive due process.” The Fifth Amendment states that no person shall be deprived of life, liberty or property “without due process of law.” That amendment says nothing about the specific content of what that liberty or property is. That is left up to legislatures to decide. It simply says that no citizen may be deprived of such unless whatever laws and procedures the legislatures have created are duly followed - “due process of law.”

But Justice Taney gave an entirely new meaning to the “due process” clause. He read into the phrase “life, liberty, or property” a right to own slaves as “property”, and then argued that a law like the Missouri Compromise, which would deprive a man of his property just for traveling from one place to another, “could hardly be dignified with the name of due process of law.” 

What Taney did in this opinion was take the simple procedural language of the Fifth Amendment and fill it up with substantive content of his own liking. “Property” = “owning slaves”  - therefore, state laws against slave ownership violate the Due Process Clause. Scholars of the Supreme Court consider Taney’s opinion to be the first use of substantive due process in Court history. And you can see how insidious a legal theory it is. Since the due process language of the Constitution is obviously procedural, any substantive interpretation given to it is purely at the whim of the biases of the Court. It can import into that language any right it wants to create, and in turn, deny the states and the people their rights to pass laws.

The temptation to use this raw judicial power to impose the will of the Court on the legislative branch or the states has been almost overwhelming, for both conservatives and liberals. In Lochner v. New York  (1905), conservative members of the Court used substantive due process to strike down state labor laws regulating the maximum number of hours a person could work. The right the conservatives invented and dumped into the due process language was a vague general right for a business owner to make a contract in relation to his business. In 1972, liberal members of the court wielded the same tool - with different biases - to justify Roe v. Wade, downloading into the due process language of the Fourteenth Amendment a right to privacy that includes a right to abortion, thus invalidating all state laws against abortion up until the third trimester.

What these examples – Dred Scott, Lochner, and Roe – all have in common is the use of judicial power to overturn legislation on the basis of a “right” that has been read into the Constitution through substantive due process. But each time the Court does this, while it is ostensibly granting rights (to own slaves, to make contracts, to terminate pregnancies), it is in fact denying the very rights the Constitution reserved to the people and the states to vote on such matters themselves. For the most part, the Court in recent years has steered away from substantive due process. It is a legal doctrine that has fallen into disfavor, and for good reason.

Until this past summer.

Justice Kennedy’s opinion in Obergefell v. Hodges was in some respects the most clumsy and heavy-handed use of substantive due process in Court history. Rather than building the case on the grounds of the “equal protection” clause of the Fourteenth Amendment, an argument that could have validity, he chose to primarily base the majority opinion on – you guessed it – “fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause.” These liberties, Kennedy asserted, “extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” 

To see just how bad this decision is, compare it to the case that Kennedy cited as one of the precedents in his opinion, Loving v. Virginia, the 1967 case that invalidated state laws against interracial marriage. In that unanimous decision, the Court held that “there can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” 

And indeed, such laws were of recent historical vintage, created in the Americans colonies to protect the institution of slavery and its basis in theories of white racial supremacy by keeping the white race “unmixed.” That’s why such laws usually applied only to WHITE interracial marriage – other races were free to intermarry. So laws against interracial marriage stood in plain defiance of the explicit language of the Fourteenth Amendment’s protection against state discrimination. (If you read the Loving opinion you will see that at the very end, the Court did make a brief substantive due process argument as well, but the bulk of the argument hinged on the equal protection clause.)

But as Kennedy conceded in his opinion, what was not in question in Loving v. Virginia, or indeed in any previous case involving the right to marry, was the very definition of “marriage” itself. “It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners.” Even in the worst days of Jim Crow segregation, if you had asked any person on the street to define “marriage,” no one would have said, “marriage is the union of two people of the same race.” They would have said, “marriage is the union of a man and woman.” That definition, which has prevailed in western civilization for thousands of years, grew out of the many and varied streams of thought that have contributed to our legal traditions, such as Greek and Enlightenment philosophy, Judea-Christian ethics, and British common law.

And the real issue before the Court this summer was, who gets to decide what the definition of “marriage” is? Ironically, Justice Kennedy was very clear just two years ago that the states have the right to define marriage, arguing in his opinion in UnitedStates v. Windsor that the Defense of Marriage Act was unconstitutional in part because it tried “to influence or interfere with state sovereign choices about who may be married.” But in Obergefell, Kennedy and four other justices swept aside the right of the people to determine the definition of marriage for themselves by shoehorning a constitutional right to same sex marriage into the due process language of the Fourteenth Amendment.

By relying on substantive due process (plus lots of uses of the word “dignity”) to do the heavy lifting in this opinion, Kennedy not only substituted the will of the five judges on the majority for that of the people and the states who had voted in various legislative acts and state referenda against same-sex marriage, but he also opened the door for any number of new constitutionally protected rights under the rubric of “individual dignity and autonomy.” Less than a month after the Obergefell decision, one law professor opined:

Justice Anthony M. Kennedy’s majority opinion in Obergefell did not focus primarily on the issue of sexual orientation. Instead, its main focus was on a “fundamental right to marry” — a right that he said could not be limited to rigid historical definitions or left to the legislative process. That right was about autonomy and fulfillment, about child rearing and the social order. By those lights, groups of adults who have profound polyamorous attachments and wish to build families and join the community have a strong claim to a right to marry. 

And just a few weeks later, another law professor argued (and yes, this was a serious piece and not an article in The Onion!):

The path to recognition of robot-human marriage is likely to be equally, if not more, lengthy, torturous, and contested. But as the court emphasized at the close of its opinion in Obergefell, the issue comes down to the “fundamental right” of a person in a free society to choose the nature of the relationships and lifestyle they choose to pursue, providing they do not unreasonably harm others in exercising their choices. Robot-human marriage is not about robot rights; it is about the right of a human to choose to marry a robot.

Once the “due process” language of the Constitution is turned into a blank canvas on which any ideologue may paint whatever picture she chooses, there is simply no way to limit how bizarre the picture may become. The great allure of this methodology is when the painting happens to be one we find personally attractive. But in all cases, the end result is the same. The rights of the people to decide matters for themselves are erased.

This just isn’t my take. A couple of years ago, one LGBT author and activist made this comment and prediction on the Court’s consideration of the Defense of Marriage Act:

The court would either have to contradict itself on states’ rights, or boldly go where no court has gone before on gay rights. Remember, the courts which have held DOMA unconstitutional have done so because marriage is a matter for the states, not the feds. But if there’s a federal right to marriage, obviously that isn’t true. See the contradiction? The only way out would be for the court to find that the Equal Protection Clause alone invalidates not only DOMA but also every state law and constitutional amendment restricting marriage. This may be what some advocates want, but it is farther than any court has dared to go, farther than Justice Kennedy’s jurisprudence on gay rights suggests he will go, and, I daresay, farther than we should go. These aren’t just statutes we’re talking about—these are state constitutional amendments, supported by huge majorities in the reddest states.

Two years later, the Court dared to do just what this author said it shouldn’t – except it used substantive due process as the means of justification.

In our system of government, the Court has the right to strike down laws it deems unconstitutional. But in our system of government, a decision of the Court is not the final word on a matter. A decision can be overturned, and that is a good thing, because the Court can get things wrong. The Court was wrong in Dred Scott – wrong in Lochner – and those decisions were eventually overturned. I understand why many of my friends celebrated the decision of the Court this summer, but my concern is that most of those celebrating do not understand that (to paraphrase a favorite philosopher ) what the Court gives with its left hand it takes away with its far left hand. Yes, the Court gave those who desire to marry a person of the same sex the right to do so – but it did this at the cost of denying all Americans the right specifically granted by the Tenth Amendment to decide this question for themselves.