Last week, the United States Supreme Court delivered its decision in Obergefell v. Hodges, 576 U.S. ___ (2015), deciding unequivocally that “same-sex couples may exercise the fundamental right to marry in all States” and “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” (Slip op. at 28).
While there is no question as to the result of the case, the Court’s journey to reach that result, as helmed by Justice Anthony Kennedy, does leave for the future some stones unturned, as highlighted, in part, by the dissenting opinion of Chief Justice John Roberts. In particular, the majority’s reasoning does not go as far as it could have to secure the protection of same-sex rights.
For all of its quotable flourishes, the majority opinion is, in Roberts’ words, “difficult to follow,” at least as concerns its technical underpinnings. Obergefell, 576 U.S. at ___ (Roberts, C.J., dissenting) (slip op. at 23). While Kennedy purports to rely upon both the due process and equal protection clauses of the Constitution’s Fourteenth Amendment, his equal protection analysis departs in all material respects from the Court’s established jurisprudence. This light treatment of the equal protection analysis is not so much a problem for this case– I believe the outcome can stand on the due process basis alone– as it is for future cases. Obergefell leaves unanswered a question many see as critical to the course of development of homosexual rights: what degree of scrutiny must courts apply in reviewing regulations that discriminate based upon sexual orientation?
Under the Fourteenth Amendment, equal protection generally means that the government must treat everyone the same. Courts have recognized that there are some instances when it is appropriate for the government to treat people differently, however. Men and women, like the old and the young, are alike in many respects, but not all, and there may be areas in which it makes sense for a law to treat people differently on the basis of their gender or age. When reviewing a law that discriminates based upon race, though, courts hold the government to a much higher standard, on the notion that there are few legitimate reasons to differentiate people on the basis of their race. Through the development of equal protection law, the Court has established a hierarchy of sorts that informs courts as to the degree of scrutiny they should apply in their review of a law that discriminates along a given line. The Obergefell majority missed an opportunity to enunciate where in that hierarchy sexual orientation belongs and thus establish a precedent for future treatment of state laws that discriminate on the basis of sexual orientation.
The meat of the disagreement between Kennedy’s majority opinion and Roberts’ dissent involves the due process component of the decision, and it boils down to a disagreement over the essence of the basic question presented to the Court.
The Fourteenth Amendment’s due process clause prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. Am. XIV, s 1. As Roberts helpfully explains, “[t]his Court has interpreted the Due Process Clause to include a substantive component that protects certain liberty interests against state deprivation . . . . The theory is that some liberties are so rooted in the traditions and conscience of our people as to be ranked as fundamental, and therefore cannot be deprived without compelling justification.” Obergefell, 576 U.S. at ___ (Roberts, C.J., dissenting) (slip op. at 10) (citations and internal quotation marks omitted). The basic question under the due process analysis thus is whether the right asserted “rank[s] as fundamental.”
The disagreement between Kennedy and Roberts is not so much about the fundamentality of the right sought to be protected– although they do disagree along those lines– as about the very right itself. They do not even agree about what they are being asked to decide.
For Kennedy and the majority, the due process question is whether the right to marriage is fundamental. For Roberts, it is whether the right to same-sex marriage is fundamental. It is hardly a surprise that their paths would diverge when they began from different starting points. (Starting points they chose purposefully and with the bigger picture of the case in mind, to be certain.) For both, the analysis flows fairly naturally from there. Kennedy cites from ample historical and legal authorities to show that marriage is fundamental, while Roberts repeatedly points to the (many would say understandable) absence of the express inclusion same-sex couples in the historical and legal discourse surrounding marriage. While each seeks to score points against the other in the lengthy literature review portions of their opinions, the spread that matters is the one between the descriptions of the question before the Court.
While I appreciate Roberts’ structural critiques of the majority opinion, I find his framing of the question presented and the due process analysis that follows unsatisfying. On the other side, I agree that the result Kennedy reached is the correct one, but I think his reasoning could have been more robust.
One of the numerous subplots in this case involves whether and when courts should defer to legislatures, and while that subplot is less deserving of comment here because justices’ preferences for deference seem to shift with their preference for the legislative act at issue, Roberts makes a broader point with which I agree as a matter of fact: political results achieved through the democratic process (i.e., legislatures) are more robust than those achieved through litigation (i.e., the judiciary). See id. at 26-27. Roberts’ conclusion– that the Court should not intervene here because a result through the legislature would be more effective– does not follow, however. If the government has infringed upon a fundamental right, those injured as a result of that infringement should not have to wait for a remedy from their legislature, the very body that has acted to their detriment, simply because success there might prove more more immediately widely respected than a judicially ordered remedy.