Symposium: “Oh, well, we know better.”

Christopher Green is an Associate Professor at Ole Miss Law.

Near the beginning of the oral argument in Obergefell v. Hodges, Justice Anthony Kennedy caused many observers to think that the Court might allow states to keep traditional marriage definitions after all. These definitions had, Kennedy said, been in place for millennia. “I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it it’s very difficult for the Court to say, oh, well, we—we know better.” Two months later, however, Kennedy surmounted those difficulties. Chief Justice John Roberts puts the point well in his dissent: “If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”

Quite unlike the opinion in Roe v. Wade, which frankly acknowledged its ignorance on the status of the fetus, Kennedy repeatedly claims to know better than the preceding millennia about whether same-sex couples are similarly situated to opposite-sex couples with respect to the purposes of marriage. His opinion is suffused with epistemic language. He speaks of what the plaintiffs’ “stories reveal,” of what “new dimensions of freedom become apparent,” of “greater awareness,” of what “psychiatrists and others [have] recognized,” of what is “now manifest,” of “knowledge,” of “new insights and societal understandings,” of “new awareness,” of what is “now clear,” of what “must be … acknowledged,” and of “enhanced understanding.”

The recognition of the need for a reliable factual foundation is perhaps a step up from Roe’s passive-aggressive approach of disclaiming knowledge on the key issue yet resolving the policy question anyway. The Court’s claims of knowledge today, by contrast, are more candidly aggressive. The Court simply announces that “[t]here is no difference between same- and opposite-sex couples” regarding the purposes of marriage.

Unlike Roe, the Court gives us few details of the sociological, psychological, and biological disputes it resolves. As Chief Justice Roberts’s dissent puts it, “The answer is surely there in one of those amicus briefs or studies.” Mere amount of deliberation is enough for the Court: “[M]any of the central institutions in American life—state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities—have devoted substantial attention to the question.”

“Substantial attention to the question” is one thing, but what of the answers? These groups have, of course, reached no consensus on whether same-sex and opposite-sex couples (or other arrangements) are similarly situated. Chief Justice Roberts quotes an eerily-applicable 1976 line from then-Justice William Rehnquist: “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.”

It is striking to compare Roe’s relative epistemic humility in the face of disagreement over when the human fetus begins to have rights: “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” The Court feels no such modesty today.

One of the Court’s few specific scientific claims is particularly striking: “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.” The Court then cites pages 7 to 17 of the American Psychological Association’s amicus brief. Digging into these pages is quite instructive. The APA itself notes at page 7 that “sexual orientation ranges along a continuum,” and claims only that it is “highly resistant to change.” The Court upgrades this to “immutable,” a word the APA itself never uses. The brief reports at page 8 that “only 5% of gay men and 16% of lesbians reported feeling they had ‘a fair amount’ or ‘a great deal’ of choice about their sexual orientation.” That’s a lot more fluidity than the Court acknowledges. At pages 8-9, the amicus brief notes, “Fully 88% of gay men and 68% of lesbians reported that they had ‘no choice at all.’”

The Court’s immutability claim, then, disagrees with thirty-two percent of lesbians’ self-reports, according to the very source on which the Court relies. Among people who take the question seriously, there is surely room for those who agree with the ancients – whether Plato in the Symposium or Paul in 1 Corinthians 6:11 – in recognizing more fluidity to sexual orientation than does the Court. If the Court’s ipse dixit cannot end psychological debate over the extent of the contingency of sexual orientation, its ipse dixits on the general issue of the relevant similarity of same-sex and opposite-sex couples will fare no better.

The citation of authority on the immutability point is an exception, though. For most claims, the Court says little about how it can be so sure about them. I am reminded of the movie Toy Story 2. Asked by Mr. Potato Head, “What makes you so sure?” Buzz replies, “I’m Buzz Lightyear. I’m always sure!” Whatever expressions of diffidence Justice Kennedy might express in late April, by late June he always seems to find a way to summon sufficient confidence. To paraphrase Captain Willard from Apocalypse Now, it’s hard to find much to criticize as unsound about his method, because it’s hard to see much method at all.

The Court’s great confidence about the relevant similarity of opposite-sex and same-sex couples is especially striking when paired with its great skepticism about claims that expansion of the label “marriage” will dilute its effectiveness for traditional applications by severing the connection between natural procreation and marriage. The Court summarily pronounces the idea “counterintuitive” and “unrealistic” and claims that the states had “not shown a foundation” for it. However, the dilution of esteem when a label is expanded was obvious to the Court in its Mishawaka Manufacturing v. Kresge Co. decision of 1942 – the “psychological power of symbols” and the “drawing power of a congenial symbol” could be undermined if trademarks could be freely used by others, following Frank Schechter’s 1926 description of the “gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name.” For all of Kennedy’s confidence about the social dynamics of meaning, honor, and dignity, it is surprising that he cannot recognize this danger, or even see a reason to stay agnostic about it.

The Court’s unexplained decision that the nation has deliberated long enough contrasts sharply, of course, with its decision eighteen years ago in Washington v. Glucksberg. Under that rule, deliberation continues until the political process has reached a consensus; only outliers against the American tradition of civil liberty will be struck down for violating fundamental rights. Citing the fundamental-right-to-marriage cases—Loving v. Virginia from 1967, Zablocki v. Redhail from 1978, and Turner v. Safley from 1987 – the Court makes “marriage and intimacy” cases a Glucksberg-free zone. Rather than reading those earlier cases to limit Glucksberg’s doctrine, though, it seems much more natural to instead read Glucksberg to refine those cases’ rationales. Loving considered a thirty-four-sixteen majority in favor of the rule it imposed on states – and itself restored a common-law rule—but Obergefell overturns a thirty-four-sixteen majority against it. Limits on child-support-delinquents’ or prisoners’ rights to marry were likewise outliers in 1978 and 1987.

In sum, the Court errs in seeing itself as the only possible source of progress (or guidance on what counts as progress) on civil liberties. The Court claims, “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” To the contrary; obviously new groups can invoke “rights once denied” under Glucksberg; they are only prevented from nationalizing those rights until a genuine consensus exists. A tradition- and outlier-based approach to constitutional adjudication need not entail traditionalism for the elected branches. The Court says, “Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society’s most basic compact.” Not so – not permanently. Even if it had affirmed, the Court could easily have made clear – as the European Court of Human Rights did in Schalk & Kopf v. Austria in 2010 in refusing to require same-sex marriage for all of Europe – that such a consensus might yet emerge in the future. If the Court really had the courage that its conclusions about same-sex marriage can withstand sustained deliberation and contestation, it too would have waited.