Michael C. Dorf is the Robert S.
Stevens Professor
of Law at Cornell University. He blogs at dorfonlaw.org
Professor Dorf served as a law clerk
for Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth
Circuit and then for Justice Anthony M. Kennedy of the Supreme Court of the
United States.
"In
the nature of split decisions, the majority opinion makes an affirmative
argument and the dissent criticizes that argument, with the majority
responding, if at all, in footnotes and other asides. That pattern holds
in Obergefell
v. Hodges. In sometimes-soaring language, Justice Anthony Kennedy’s opinion
barely addresses the pointed and occasionally nasty critique leveled in four
separate dissents, perhaps leaving the impression that nothing can be said in
response.
That
impression is false. None of the
points made by the dissenters withstands critical scrutiny – not least the
claim that because marriage originated as an institution to address accidental
procreation by heterosexuals, a state has a rational (much less compelling)
interest in forbidding gay and lesbian couples from participating in the modern
institution of marriage.
Still
less persuasive is the dissenters’ repeated insistence that this case differs
from prior marriage cases because those cases did not involve the definition of
marriage. To quote Justice Antonin Scalia’s acerbic dissent, “Huh?” Would the
eight Justices who signed onto the fundamental rights portion of Loving v. Virginia have
reached a different conclusion if the Virginia statute defined marriage
as an institution between a man and a woman of the same race?
Chief
Justice John Roberts, in the principal dissent, sets forth the most elaborate
argument, but fundamentally he makes three points: (1) there is a difference
between support for same-sex marriage as a policy matter and as a
constitutional matter; (2) premature constitutionalization of a right that
cannot yet be said to be deeply rooted in the nation’s history and traditions
risks undermining long-term support for the right because defeat of the
anti-same-sex-marriage position in the democratic process would be more
acceptable; and (3) the majority’s logic opens the door to claims such as a
right to polygamy. Beyond that, his dissent repeatedly compares the ruling
to Lochner v. New York, citing the case a whopping sixteen times.
Nearly
all of what the Chief Justice says would work equally well as an argument
against all unenumerated rights, indeed, against all judicial
decisions that draw inferences from vague language contained in enumerated
rights as well. The other dissents do not fare better.
Justice
Clarence Thomas (joined by Justice Scalia) is more succinct but also more
radical than the Chief. He rejects substantive due process in its entirety, but
then, citing Founding Era and earlier texts, provides two fallbacks. To the
extent that Justice Thomas would allow any substantive due process it would be
for the liberty of movement only, and failing that, for no more than negative
liberties. Marriage, as state recognition, would not be a fundamental right for
anyone. Recognizing that, taken at face value, his view would require
overruling Loving (in its fundamental rights aspect),Zablocki v.
Redhail, and Turner v. Safley, he elevates the happenstance that those
cases involved criminal prohibitions into central features, concluding that
“in none of those cases were individuals denied solely governmental
recognition and benefits associated with marriage.” Thus, two Justices of the
Supreme Court apparently believe that, consistent with the Constitution, a
state could forbid, say, people (even of the opposite sex) over the age of
fifty from marrying.
Justice
Samuel Alito (joined by Justices Scalia and Thomas) is chiefly concerned about
people who oppose same-sex marriage on religious grounds. Will they now be
required to participate in same-sex marriages? The short answer is no. As
Justice Elena Kagan noted during the oral argument, even to Justice Scalia’s
evident satisfaction at the time, clergy who solemnize marriages have long been
given the freedom to decide which ceremonies at which to officiate based on
criteria that would be constitutionally problematic in other contexts. As for
others – such as religiously scrupled bakers and florists – absent
(much-needed) legislation, the state action doctrine permits them the freedom
to discriminate against same-sex couples.
And
then there is Justice Scalia, who professes to worry about the ruling’s
implications for democracy but seems more irked by Justice Kennedy’s prose
style. In perhaps the most intemperate line in the U.S. Reports, Justice Scalia
mocks the opening line of the majority opinion: “The Constitution promises
liberty to all within its reach, a liberty that includes certain specific
rights that allow persons, within a lawful realm, to define and express their
identity.”
Justice
Scalia replies: “If, even as the price to be paid for a fifth vote, I ever
joined an opinion for the Court that began” in this way, “I would hide my head
in a bag.” This from a Justice who – just in cases that are centrally relevant
to the issue in Obergefell – once began a dissent by
accusing the Court of mistaking “a Kulturkampf for a fit of spite” (as though
Prussian anti-Catholic policies were an appropriate model for Colorado’s
treatment of its gay and lesbian minority), in another dissentcompared
same-sex intimacy to bestiality, and in a futile effort to read Loving as
having nothing to do with evolving values, invented
his very own inaccurate text of the Fourteenth Amendment.
Forget
about the bag. Justice Scalia should not appear in public except in a full
burka.
What
bothers Justice Scalia and, to a somewhat lesser extent, his fellow dissenters,
about Justice Kennedy’s soaring rhetoric? In prior gay rights cases, they have,
with some justification, complained that the majority was unclear about how its
holding fit with conventional constitutional doctrine, but there is little
cause for complaint on that score in Obergefell. Justice Kennedy says with
admirable clarity that marriage is a fundamental right and that the state has
not offered a sufficient justification for denying it to same-sex couples.
Both
Chief Justice Roberts and Justice Scalia are puzzled by Justice Kennedy’s
invocation of “synergy” between the Equal Protection and Due Process Clauses,
but they ought not be. Especially not Justice Scalia, whose opinion in Employment
Division v. Smith explained away prior cases that obviously
contradicted the rule he announced there by describing them as resting on a
“hybrid” of free exercise and other rights (including substantive due
process!). Viewed from the window of Justice Scalia’s glass house, “synergy” is
argle bargle but “hybrids” rest on a firm constitutional foundation.
Were
the dissenters more interested in understanding than ridiculing the majority
opinion, they would see that equal protection considerations help explain why a
right to same-sex marriage does not necessarily open the door to polygamy,
adult incest, and the other supposed horribles in their gay shame parade. With
a few notable exceptions, for thousands of years people have been stigmatized,
beaten, and killed for the sin of loving someone of the same sex. The
dissenters regard this shameful history only as the basis for continued denial
of constitutional rights. The majority, by contrast, sees in this history of
subordination a special reason to be skeptical of the reasons advanced for
excluding same-sex couples from the institution of marriage.
Justice
Kennedy writes: “Especially against a long history of disapproval of their
relationships, th[e] denial to same-sex couples of the right to marry works a
grave and continuing harm. The imposition of this disability on gays and
lesbians serves to disrespect and subordinate them.” It really is that simple.
Is
it possible that some day we as a society will come to regard plural marriage
in the same way? Sure. Just as a social and political movement led a Court
whose Chief Justice once dismissed the idea of an individual right to bear arms
as a “fraud” to change its mind about that constitutional right (as Reva
Siegel has
argued persuasively), so too a social and political movement for
plural marriage could likewise succeed and if it does, the Court will follow
suit.
Indeed,
notwithstanding their citations of Magna Carta and The Federalist, even
the dissenters appear to be evolving when it comes to gay rights. For all of
his fulminating, at least Justice Scalia is no longer comparing gay sex to
bestiality. Meanwhile, the Chief Justice was gracious in inviting the victors
to celebrate their victory.
That
is also precisely what Justice Kennedy was doing in a prose style that
sometimes bordered on poetry. And as numerous pictures of celebrations around
the country illustrate, it worked.
My
gay and lesbian friends have no illusions that Obergefell marks the
end of what one with whom I partied at a gay pride event in Brooklyn last night
called their “liberation struggle.” We still need a federal antidiscrimination
law. And as importantly, hearts and minds must continue to be won over.
But
the Chief Justice is wrong in suggesting that only elections will do the trick.
For better or worse, in the U.S., courts play a vital role in a complicated
dance involving grass-roots activists, political organizers, elected officials,
and ordinary citizens. Much work remains to be done with each of these
constituencies but for now we can pause to celebrate a hard-won victory.
Justice Kennedy’s opinion fittingly solemnized the occasion.
Recommended
Citation: Michael Dorf, Symposium: In defense of Justice Kennedy’s
soaring language, SCOTUSblog (Jun. 27, 2015, 5:08 PM), http://www.scotusblog.com/2015/06/symposium-in-defense-of-justice-kennedys-soaring-language/"
Citado desde ScotusBlog
No hay comentarios:
Publicar un comentario