A great deal has been written about the Obergefell v. Hodges decision which was decided three months ago this week. There is not much to be added to the many great articles that have been written on the consequences of this decision. Nonetheless, there are a few interesting minor points about the decision that I have not seen raised yet. Granted, I have not been able to keep up with all the discussion of the case, and these points are possibly being raised elsewhere. But to date, these have not made much traction. I point out five of these issues.
1. The four dissenters are showing integrity in their textualist approach to the Constitution. The Constitution was enacted with a heavy emphasis on structure protection of liberty Each of the dissenters has a record showing support for this interpretation, rather than seeking the expansion of rights that are not stated clearly in the text. Presumably, each of the four dissenters is fairly strongly opposed to same sex marriage. And yet, none of the dissenterss address the same sex marriage head on. Each directs his argument toward the profound attack on federalism that the majority opinion represents. Justice Scalia goes so far as to claim he is indifferent about the substantive issue underlying the case. I suspect that there is some hyperbole there in that statement. However, Scalia's record and speeches strongly support his stated view that the role of the Supreme Court is a very limited one. He is being consistent. While he may have strong views on topics that are outside his perception of the Court's jurisdiction, he would be content to allow states to pass laws he finds abhorrent without finding a basis for Supreme Court action on the matter.
2. Postmodernism creeps into the Court's reasoning. Rather than a cold recitation of the facts, the Court recounts three of the stories from the 16 couples whose marriages make up the pool of plaintiffs behind the case. Why these three? Justice Kennedy wishes to set forth the most resonant stories to indicate the emotional impact of the cases before setting forth the technical details. This smoothly fits into the analysis because 21st century readers are now used to argument arising from narrative detail, rather than logic and reason. Compelling stories are certainly a big part of litigation. However, it has generally been the role of the advocates to set the emotional tone for the argument, not the Court. The narratives are obviously irrelevant to the analysis that follows. Kennedy could have foregone any specific details, other than the fact that there have been 16 instances of efforts to create same sex marriages in states where such unions were unlawful, which found their way before the Court. Or, he could have given the details of each of the sixteen cases. The choice to go for three was that these provided touching instances of suffering by people engaged in noble activities or suffered heartbreak. Kennedy justifies his recounting of these three stories to show "the urgency of the petitioners' cause from their perspective." That is an odd basis for recounting the facts. There are few cases where the perspective of the litigants is not one of urgency.
The first of the three cases involves the Obergefell/Arthur relationship. There, Arthur died very shortly after the couple had a dramatic marriage ceremony in a state where same sex marriages were legal. The actual facts of the marriage relevant to this case are not moving. But Kennedy includes this narrative to demonstrate that the lack of a legal marriage would be "hurtful" to Obergefell. That is, a new fundamental right must be found because of the emotional harm caused by the law. This is of a piece with the right to dignity that underlies this opinion and some of Kennedy's earlier reasoning elsewhere. More on the challenges of dignity-based rights later. In this instance, the pain is not intrinsic to the status of the litigants, it is in the impact of mortality on a relationship. All relationships in which one partner predeceases another give rise to deep feelings about what could have happened but for the death.
The second case, DeBoer/Rowse, involved a lesbian couple who adopted children who were disabled to the extent that they required a great deal of care. The sacrifice of these two women is admirable. However, as Kennedy could not reference an actual tragedy to support this story and give it the "urgency" on which his opinion partially relies, he implies a hypothetical one. He can only speak of what would happen to the children "were tragedy to befall" the couple.
In the third instance, the DeKoe/Kostura relationship, involved a combat veteran, who, because he took a job with the Reserves in Tennessee, which did not recognize same sex marriage, brought the couple from a state where they were considered legally married to a state where their marriage was no longer lawful. The compelling part of the story being that a combat veteran is involved, and it points out the challenges caused by differing laws in a nation of federated states. More on that issue later.
The common theme in these narratives is that the application of the law can be painful to the parties. That is not unusual. In much litigation, parties suffer great hurt from the outcome of the decision. Indeed, in many cases, it is certain that one party will be greatly aggrieved no matter who prevails. This is in part why we speak of the metaphor of justice being blind. The application of the law is to be shielded from bending justice because of sympathy for the litigants.
3. Federalism is losing rhetorical force in popular democratic ideals. The DeBoer/Rowse case demonstrates how complex federalism can be. It is admittedly strange for those who advance the argument that marriage is to be permanent to claim that one's status can change as he crosses state lines. However, that peculiarity of federalism has been the case from the founding of the republic. Where one state does not recognize the grounds of a marriage in another state (based on age of the parties or closeness of family ties, for example), marriage seems strangely malleable. However, our courts have long accepted the dissonance of states with different qualifications for marriage, and the the full faith and credit clause of the Constitution has never been successfully invoked to protect a marriage deemed void in a state. The problem caused by different definitions in different states cuts both ways. Where it is greatly inconvenient to citizens who move, states ought to be hesitant to dramatically change the standards for marriage so as to be out of syn with the other states.
This argument is going to sound hollow to those who do not hold federalism in high regard. Those parts of the Constitution that are nondemocratic or impede central control, such as the Electoral College, are losing their support in the popular culture. It should be recognized, though, that abandoning these protections comes at a cost to the nation in holding back tyranny. When considering the changing nature of marriage for those married in a state with more expansive qualifications than most states when they travel across the country, it is easy to depreciate the value of federalism. This is the case because the ones who bear the cost of federalism are easier to identify and sympathize with than those who bear the potential threat of tyranny when federalism is undermined. Yet the cost is real.
4. Dignity is an unreliable basis for a legal right. Justice Kennedy has advanced an approach to constitutionalism that supports protection of dignity. While no one is opposed to dignity, and it is in fact the motivation for a great deal of legislation, it can undermine predictability in judicial decisions as claims of dignity are easily drawn into conflict with each other. Indeed, Justice Kennedy's opinion illustrates this.
One of the grounds for Kennedy's claim for the importance of marriage is that it lets children avoid the stigma of being raised by unmarried parents. This aligns with Kennedy's dignity reasoning.
It is undeniable that there is indeed a stigma associated with being born outside of marriage. However, that stigma is tragic because a child has no choice in his or her parentage, and efforts to diminish the stigma are worthy of support by the Court and other institutions. However, Kennedy's reasoning actually enhances the stigma. In his quest to advance the dignity of those who are children of same sex couples who seek to be married, he unwittingly adds to the shame of those who were not. Thus are the challenges of a dignity-based jurisprudence.
5. The majority opinion sets back the authority of the Supreme Court as an impartial arbitrator of Constitutional interpretation. There are parallels between the Obergefell case and Roe v. Wade in that both cases advance rights not expressly or impliedly addressed in the Constitution based on vague references to the Fourteenth Amendment. However, Roe v. Wade has lost regard over the years in part because of its opaque textual use and loose reliance on flimsy moral reasoning. Roe v. Wade 's logical lapses were "cleaned up" in later cases, although its progeny still never made the textual source for their authority persuasively clear. Obergefell is Roe v. Wade all over again. Only this time, the Court is far more bold in demonstrating its willingness to overstep legislative lines. While attempting to obscure the fact that the nation's legislatures have not embraced same sex marriage, it plainly acknowledges that only 11 states have legislatively recognized same sex marriage.
Justice Scalia criticizes the majority for its hubris. Arrogance is a common complaint in emotionally pitched disagreements. However, arrogance is much overrated as a vice in rhetoric. That a party to a disagreement is egotistical neither advances nor defeats the logic of the claim. Certainly, the Kennedy opinion demonstrates hubris. But that is less of a concern than its bracing admission of treating a minority view as fundamental. It is hard to imagine why Kennedy would include a paragraph that is needless to his argument which admits the power grab of the Court. It can only be assumed that Kennedy has become so accustomed to his Court's role in resolving splits in the Federal Circuit Courts that he assumed that readers would recognize the benefit of the Court stepping in where there is a split in state legislatures. Certainly, the most compelling argument for not finding a fundamental right would be that a relatively new legal right has only been recognized by 11 states.
Much more is going to be written on the import of the Obergefell decision in the coming days. It will no doubt soon be elevated to the ranks of those Supreme Court decisions that are so iconic that they need not be read in order to have the rhetorical effect of just invoking their name. However, the passage of time necessarily is going to mean that as the case is dissected in the many litigated matters that will rely on its reasoning, the dangerously loose reasoning is going to create many problems not yet contemplated. It is to be hoped that the arguments that seek to advance its excesses, such as an over powerful reliance on the vague right to dignity, and the Court's ability to shorten the deliberative legislative process in favor of positing the views of those who can constitute a majority of the Court, will render clear just how poorly reasoned this case really is.