Symposium: The Constitution has everything to do with it

Judith E. Schaeffer is the Vice President of the Constitutional Accountability Center

Whether by design or serendipity, today’s historic ruling in Obergefell v. Hodges came on the anniversaries of two other momentous gay rights decisions, Lawrence v. Texas and United States v. Windsor. The author once again was Justice Anthony Kennedy, who has now turned his trio of decisions vindicating the rights of gay men and lesbians — Romer v. Evans being the first — into a resounding quartet. And while Chief Justice John Roberts sternly proclaimed from the bench today and in his written dissent that “the Constitution had nothing to do” with the majority’s decision, in fact it had everything to do with it.

Like its 1967 opinion in Loving v. Virginia striking down state laws prohibiting interracial marriage, the Court’s ruling in Obergefell rests on the Fourteenth Amendment’s independent guarantees of liberty and equality. Justice Kennedy’s opinion in Obergefell, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, begins with a fundamental rights analysis, befitting the importance Kennedy attaches to marriage as an institution critical to society and a “building block of our national community.”

Reviewing “four principles and traditions” of marriage, Justice Kennedy concludes in Obergefell that the reasons why marriage is a fundamental right under the Constitution “apply with equal force to same-sex couples.” Of particular importance to Justice Kennedy is the “right to personal choice regarding marriage,” which Kennedy explains is “inherent in the concept of individual autonomy.” In addition, Justice Kennedy’s opinion highlights the importance of marriage in safeguarding children and families, a factor that influenced the decision in Windsor striking down a key part of DOMA. In Obergefell, as in Windsor, Justice Kennedy expressly recognizes not only that many thousands of children are being raised by same-sex parents, but also that they are harmed when states prohibit their parents from marrying.

Justice Kennedy also rejects the illogical and incomprehensible argument made by opponents of marriage equality that same-sex couples must be excluded from marriage in order to channel those capable of procreating into marriage. As Justice Kennedy explained, “[d]ecisions 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.” Like the vast majority of other judges who have ruled on marriage equality since Windsor, the five Justices in the Obergefell majority could find no good reason why same-sex couples should be denied the fundamental right to marry.

Justice Kennedy’s opinion in Obergefell is a natural extension of his prior gay rights rulings and is consistent with his views of the equal dignity and worth of gay men and lesbians that animated those rulings. Indeed, as Justice Scalia correctly observed of the Court’s decision in Lawrence, “what justification could there possibly be for denying the benefit of marriage to homosexual couples exercising ‘the liberty protected by the Constitution?’” There is none. Today’s decision is consistent with and compelled by the text and history of the Fourteenth Amendment, which guarantees equality and liberty to all persons, regardless of sexual orientation.

As noted, today’s ruling was five to four. That Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented was unsurprising. They had already pre-judged this case in their dissents in Windsor. Indeed, Justice Alito could not have been more clear in Windsor, writing, in a dissent joined by Justice Thomas, that “[s]ame-sex marriage presents a highly emotional and important question of public policy – but not a difficult question of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage.” And, in case after case, Justice Scalia has demonstrated that he has a constitutional blind spot where the rights of gay men and lesbians are concerned. His dissent today even included a predictable serving of vitriolic language, among other things excoriating the majority for what Scalia called its “judicial Putsch.”

Not as predictable, and far more disappointing, was Chief Justice John Roberts’s dissent in Obergefell, not only because of his office, but also because, as I have discussed previously, it was clear from Roberts’s confirmation hearing that he correctly understood the proper analysis applicable to a case involving the denial of the fundamental right to marry. Had Roberts been faithful in Obergefell to his confirmation hearing discussion of Loving v. Virginia, in which he recognized that the correct analysis was to consider the fundamental right to marry, not whether interracial marriage was deeply rooted in history or tradition, he would have joined the majority in Obergefell. As Justice Kennedy explained, “[i]f 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. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.”

Roberts premised his dissent on the erroneous assumption that the “definition of marriage” was at issue, rather than the application of fundamental Fourteenth Amendment principles to a certain set of facts. Referring to the majority as “[f]ive lawyers [who] have closed the debate” over marriage, Roberts may well have sought to undermine the Court’s ruling, a rather disheartening step by the Chief Justice of the United States.

Reading from his dissent on the bench today, and echoing Sixth Circuit Judge Jeffrey Sutton below, Roberts treated gay men and lesbians to a lecture, expressing the view that they would be better off in the long run waiting until they had convinced voting majorities in their states to allow them the freedom to marry. The notion is not only paternalistic, it’s also a total misapprehension of the role of the courts in our constitutional democracy. The majority properly rejected it, observing that whatever momentum may exist in the “democratic process” is “of no moment.” The Court in Obergefell was presented with a legal question – whether the Constitution protects the right of same-sex couples to marry – and, as Justice Kennedy put it, “has a duty to address these claims and answer these questions. . . This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.”

Indeed, the majority’s opinion is a ringing affirmation of the proper role of the courts, and correctly rejected the desperate pleas of opponents of marriage equality that state voters or legislatures should decide whether same-sex couples can marry. In our constitutional democracy, as the majority recognized, the constitutional rights of minorities are not subject to the whims of the majority.

It is extremely disappointing, even though unsurprising, that Obergefell was not a unanimous decision. Loving was decided by the Court unanimously, and Obergefell should have been as well. The same Fourteenth Amendment principles of equal protection and fundamental rights that formed the basis of the ruling in Loving applied in Obergefell, as Justice Kennedy demonstrated. The dissents today got the Constitution terribly wrong.

Justice Kennedy concluded his opinion with majestic language, observing that same-sex couples “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Chief Justice Roberts’s dissent notwithstanding, Obergefell v. Hodges will be a great legacy of the Roberts Court, just not of John Roberts himself. And the Constitution will have had everything to do with it.