I think the majority gave short shrift to the state’s reasons because they
viewed them as ridiculous. I think the dissenters didn’t talk about them
because 1) they didn’t really believe them either, and 2) they didn’t have to
get that far because a) there was no right in the first place and nothing had
to be justified, and b) if any justification were required, moral disapproval
was enough.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, July 03, 2015 11:55 AM
To: Law & Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edu
Subject: The Remarkable Disappearance of State Justifications in Obergefell
Some of you might find this of interest. Reactions and critiques encouraged,
as always.
http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html
The Remarkable Disappearance of State Justifications in Obergefell
Marty Lederman
Over at the Slate "Breakfast Table," I have a
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html>
post describing the handful of biggest surprises in what was in fact (or so I
argue) a Supreme Court Term in which the Justices generally acted according to
predictable form.
One of the most remarkable aspects of the Term, I argue there, is what the
Court didn't do in
<http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>
Obergefell--namely, devote much attention at all to the states' asserted
justifications for excluding same-sex couples from the institution of civil
marriage. That lacuna was no mere oversight--it was a function of the fact
that the articulated justifications were threadbare, and that any legitimate
justifications were virtually nonexistent. For that reason, I argue, the
impassioned opinions of the dissenting Justices will have very little traction
in the years to come--they elide the critical point--and the Court's judgment
will, in short order, be very widely embraced as self-evidently correct. To be
sure, there is, and will remain, a substantial minority of Americans who oppose
SSM. But the reasons they do so--primarily, moral disapproval, biblical
injunction, anxiety about homosexuality, and occasionally even animus--are
unavailable to the states as legitimate justifications; and therefore it's
understandable that those justifications--the actual grounds for state
discrimination--do not even make an appearance in the Obergefell opinions.
Here's a slightly amended version of the Obergefell portion of my Slate post:
For more than a dozen years, in the scores of cases challenging marriage laws
going back to
<https://scholar.google.com/scholar_case?case=16499869016395834644&hl=en&as_sdt=6&as_vis=1&oi=scholarr>
Goodridge and beyond, the briefing, arguments, and written decisions had been
dominated by two questions: First, is discrimination on the basis of sexual
orientation, like sex discrimination, subject to “heightened scrutiny” (in
which case the denial of same-sex marriage would certainly be
unconstitutional)? Second, if not--if "rational basis" review is
applicable--what are the state interests supporting denial of same-sex
marriage, and do they satisfy even the very deferential “rational-basis” test?
Lawyers, judges, clerks and commentators expended thousands upon thousands of
hours on these questions; if I had to guess, I’d say they consumed upward of 80
percent of the time, effort, and resources in the marriage cases over the
years, including in Windsor and Hollingsworth two terms ago, and in Obergefell
and its companion cases this year.
The 90-plus pages of the Justices’ opinions in Obergefell don’t mention the
first question (the proper standard of review for discrimination on the basis
of sexual orientation) at all—not even to reserve it. That's a significant
failing of the dissenting opinions, as I explain below. But it's not so
surprising an omission in the majority opinion; I certainly didn't think
Justice Kennedy would issue a ruling on the standard-of-review question, given
that it was sufficient for him simply to hold that the marriage laws do not
pass rational-basis muster (in conjunction with his substantive due process
ruling).
What is truly shocking, however, is that the various opinions barely even
allude to the states’ asserted interests and whether they are sufficient to
satisfy rational-basis review!
Let's start with the majority opinion. Justice Kennedy announces the
categorical, unequivocal holdings of the court on Pages 22–23 (emphasis mine):
The right to marry is a fundamental right inherent in the liberty of the
person, and under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment couples of the same-sex may not be deprived of that right
and that liberty. The Court now holds thatsame-sex couples may exercise the
fundamental right to marry. No longer may this liberty be denied to them.
Baker v. Nelson must be and now is overruled, and the State laws challenged by
Petitioners in these cases are now held invalid to the extent they exclude
same-sex couples from civil marriage on the same terms and conditions as
opposite-sex couples.
These holdings appear before the Court has said a single word about the four
defendant states’ asserted justifications for refusing to recognize same-sex
marriage. It is only after this passage that Justice Kennedy briefly addresses
and unceremoniously rejects a couple of interests mentioned by the dissenting
justices. From all that appears, however, the holdings of the Court do not
depend in the slightest on whether the States’ interests might justify what
would otherwise be a violation of equal protection and denial of due process.
The two-ton gorilla is even more conspicuously absent in the dissenting
opinions. The Chief Justice's lead dissent spends almost 30 pages bemoaning
the fact that the Court has allegedly betrayed history by not leaving the
question to be decided by the ordinary political process. (He neglects to
mention that recent state constitutional amendments were designed specifically
to cut off the ability of marriage equality proponents to alter the law through
the ordinary processes of political debate.) To read the Chief’s opinion, one
would think there must be very strong reasons not to upset the status quo—or,
at least, that a tradition of surpassing importance is at stake. Yet he does
not so much as offer, let alone defend, a single one of the justifications on
which the States have relied, until, finally, this single, solitary sentence on
Page 24: “The marriage laws at issue here do not violate the Equal Protection
Clause,” he writes, “because distinguishing between opposite-sex and same-sex
couples is rationally related to the States’ ‘legitimate state interest’ in
‘preserving the traditional institution of marriage’ ” (quoting Justice
O’Connor’s concurrence in Lawrence).
This took me aback, for two reasons. First, the Chief does not even address
whether “rational basis” is the proper test; he merely assumes it. (He’s
typically much more careful than that, taking care to address all significant
counterarguments.) Second, and more striking still, can he genuinely believe
that the “legitimate state interest” sufficient to support “preserving the
traditional institution of marriage” is … to “preserve the traditional
institution of marriage”? Or even (if we eliminate the obvious circularity in
his formulation), that tradition, qua tradition (cue
<https://www.youtube.com/watch?v=gRdfX7ut8gw> Tevya) is a good enough reason to
deny same-sex couples the profound benefits of civil marriage—without any
normative justification? (In fairness to Tevya, his asserted reasons for
refusing to bless Chava's marriage to Fyedka are actually more reasonable than
anything the dissenting Justices or the States in Obergefell were able to
articulate.)
The Scalia and Thomas opinions likewise inveigh mightily against the court’s
profound “threat to American democracy” and “other aspects of our
constitutional order” … without offering a single reason why the discriminatory
results of that historical order might be remotely justifiable, or even
normatively attractive.
By contrast, Justice Alito at least mentions two purported justifications for
restricting marriage to opposite-sex couples. One is “to encourage potentially
procreative conduct to take place within a lasting unit that has long been
thought to provide the best atmosphere for raising children.” The other is to
avoid the risk of the unknown: “No one—including social scientists,
philosophers, and historians—can predict with any certainty what the long-term
ramifications of widespread acceptance of same-sex marriage will be.” Justice
Kennedy makes short shrift of these two justifications, which is just about
what they deserve.*
There is an explanation, of course, for this disconnect between the gargantuan
efforts expended on the question of state interests in the litigation and the
virtual absence of any such discussion in the Obergefell opinions of the
Justices--namely, that the principal real reason that many states have
prohibited same-sex marriage is simply because their legislators and/or their
constituents morally disapprove of, or are deeply discomfited by, homosexuality.
But discomfort, anxiety, and a lack of understanding obviously are not valid
justifications for the discrimination at issue here. And the Court’s decision
in Lawrence took off the table the ability of states to invoke simple moral
disapproval. Without resort to those actual justifications—as well as
religious justifications upon which the civil state cannot rely—there’s simply
nothing left on the state interest side of the equation. And thus, whatever
one’s views might be on the great issues that divide the justices (substantive
due process and Glucksberg, the meaning of “liberty” in the Due Process Clause,
the proper scope of judicial review, etc.), a state's refusal to recognize and
license same-sex marriage simply cannot stand for a very simple reason—namely,
that there’s no rational, let alone good, reason for such a denial. Which is
why, for all the sturm und drang of the dissenting opinions—their clarion call
to arms in the service of great American ideals—it is very unlikely they will
find much of a sympathetic audience in the years to come. As the Bard says,
when you’ve got nothing, you’ve got nothing to lose.
One further word on this important point about the absence of legitimate state
interests: Unlike
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_gay_marriage_john_roberts_dissent_in_obergefell_is_heartless.html>
Judge Posner, I don’t think these actual, sub rosa reasons for traditional
state laws limiting marriage—moral disapproval, biblical teachings, anxiety
about homosexuality, etc.—necessarily equate to “bigotry,” akin to the motives
underlying our ugly history of race discrimination. (Of course there is some
bigotry against LGBT individuals; but I don't think that explains the entirety
of the opposition.) And thus I don’t find it very useful for influential
figures such as Judge Posner to put the conversation in those terms, or to
assert (as he does) that any "gratuitous interference in other people’s lives
is bigotry." This quick move to name-calling unfortunately plays into the
feverish--and I think unwarranted--alarms of the dissenters that same-sex
marriage opponents themselves will shortly be treated as despicable social
outcasts. Justice Kennedy, to his credit, goes out of his way to disclaim and
discredit the notion that same-sex marriage opposition is necessarily rooted in
bigotry and that its adherents ought to be shunned: “Many who deem same-sex
marriage to be wrong reach that conclusion based on decent and honorable
religious or philosophical premises, and neither they nor their beliefs are
disparaged here, " he writes. "The First Amendment ensures that religious
organizations and persons are given proper protection as they seek to teach the
principles that are so fulfilling and so central to their lives and faiths, and
to their own deep aspirations to continue the family structure they have long
revered.”
_______________________
* As to the latter, see pages 23-26 of the majority opinion, which echoes the
stirring closing of the Solicitor General's oral argument (
<http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1> audio at
39:45):
What the Respondents are ultimately saying to the Court is that with respect to
marriage, they are not ready yet. And yes, gay and lesbian couples can live
openly in society, and yes, they can raise children. Yes, they can participate
fully as members of their community. Marriage, though, . . . not yet. Leave
that to be worked out later. . . . But what these gay and lesbian couples are
doing is laying claim to the promise of the Fourteenth Amendment now. And it
is emphatically the duty of this Court, in this case, as it was in Lawrence, to
decide what the Fourteenth Amendment requires. . . . [I]n a world in which gay
and lesbian couples live openly as our neighbors, they raise their children
side by side with the rest of us, they contribute fully as members of the
community, . . . it is simply untenable--untenable--to suggest that they can be
denied the right of equal participation in an institution of marriage, or that
they can be required to wait until the majority decides that it is ready to
treat gay and lesbian people as equals. Gay and lesbian people are equal.
They deserve the equal protection of the laws, and they deserve it now.
And as to the former justification, Justice Kennedy writes (pp. 26-27):
The respondents also argue allowing same-sex couples to wed will harm marriage
as an institution by leading to fewer opposite-sex marriages. This may occur,
the respondents contend, because licensing same-sex marriage severs the
connection between natural procreation and marriage. That argument, however,
rests on a counterintuitive view of opposite-sex couple’s decisionmaking
processes regarding marriage and parenthood. Decisions about whether to marry
and raise children are based on many personal, romantic, and practical
considerations; and it is unrealistic to conclude that an opposite-sex couple
would choose not to marry simply because same-sex couples may do so. See
Kitchen v. Herbert, 755 F. 3d 1193, 1223 (CA10 2014) (“[I]t is wholly illogical
to believe that state recognition of the love and commitment between same-sex
couples will alter the most intimate and personal decisions of opposite-sex
couples”). The respondents have not shown a foundation for the conclusion that
allowing same-sex marriage will cause the harmful outcomes they describe.
Indeed, with respect to this asserted basis for excluding same-sex couples from
the right to marry, it is appropriate to observe these cases involve only the
rights of two consenting adults whose marriages would pose no risk of harm to
themselves or third parties.
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