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Friday, June 26, 2015

Two Cheers for Obergefell

Today’s decision in Obergefell raises an interesting conflict between constitutional substance and constitutional process – or, put another way, the conflict between recognizing that a change is due and bringing about that change in the right (meaning democratic) way. On the whole, as I explain after the jump, I regard Obergefell as a minor setback for gay and lesbian equality, but probably an inevitable and necessary one.

On one hand, as a matter of substance, I am elated, like many others, that gay and lesbian equality has won such emphatic recognition from the SCOTUS. I have been rooting for judicial promotion of the cause for a long time. Twenty-three years ago, Jean Dubofsky, my then-boss, argued Romer v. Evans before the SCOTUS. (I had the privilege of sitting in the second chair and watching her face light up when Kennedy told Colorado’s SG, Tim Tymkovich, that Kennedy thought James v. Valtierra was not apposite).

On the other hand, it seems to me that Obergefell provides political cover for the enemies of gay and lesbian equality. Now, instead of having to defend anti-gay policies on the merits, they can invoke the principle of popular sovereignty, piously disclaiming any opinion on the merits of the controversy while vociferously insisting that it is the right of the people to decide the question. If I were the chair of the GOP, I would greet Obergefell with intense relief, anticipating that now would be able to pander to my evangelical constituents on procedural grounds while avoiding the alienation of suburban seculars, simply by trotting out the “anti-judicial activism” script.

It is also hard to see how the legitimacy of gay and lesbian equality is advanced by a 5-4 decision from SCOTUS. Such a decision cannot add much to the victory being achieved in the state legislatures, where the enemies of equality are suffering repeated defeats. It seems plain to anyone who reads the newspapers that laws discriminating against same-sex couples are on the fast garbage truck to the landfill of history. The best way to discredit bias against same-sex couples – or so it seems to me – is to promote democratic internment of such bias by statute and ordinance. These laws would make it unmistakably plain that those opposed to gay and lesbian equality stand against a solid majority of Americans – the worst of political sins in a land ruled by popular sovereignty.

Instead, SCOTUS stole democracy’s thunder, dashing in at the last minute to declare a victory already won by democratic means.

Nonetheless, I believe that Obergefell, although providing no great benefit for the cause of gay and lesbian equality, was probably unavoidable.

The reason is that it is now impossible to write an opinion upholding discrimination against same-sex couples using conventional “rational basis” arguments. The arguments against gay and lesbian equality have become so threadbare, so empty, that they cannot be read with a straight face. There are no substantive “legitimate governmental interests” that one can invoke without lending comfort to purest prejudice.

To uphold anti-gay discrimination, therefore, one would have to write a purely procedural opinion. Such an opinion would justify discrimination against same-sex couples by declaring that 1) many people believe such discrimination to be justified, 2) such discrimination has been around for a very long time, reenforcing those beliefs with the venerability bestowed by time, 3) judicially eliminating such discrimination would alienate people who believe that such discrimination is justified, ultimately impeding the triumph of the non-discriminatory position through democratic means, 4) those who resist equality tend to be older and their numbers are rapidly diminishing either through persuasion or death, 3) legislatures will, therefore, probably eliminate such discrimination soon, and 5) such a legislative fix will make the change more durable and effective in the eyes of those who oppose it than a judicial fix.

The doctrinal resources do not exist in the case law to permit the writing of such a purely procedural opinion. No due process or equal protection doctrine allows a court to justify an otherwise unjustifiable law merely because that law is better eliminated democratically rather than judicially. Even under the most lenient “tier” of scrutiny, one needs to come up with some minimally plausible substantive justification for the burden. The problem with these burdens on same-sex couples is that any such justification sticks in one’s craw.

And so, for supporters of gay and lesbian equality, Obergefell was a necessary evil. Two cheers, then, for the opinion – but a steady march of legislative victories seems far more legitimizing to me than a 5-4 decision from SCOTUS.

Posted by Rick Hills on June 26, 2015 at 04:31 PM | Permalink


Dear Professor Hills:

1. Given the two Questions Presented in Obergefell, let’s say the Court had decided the case ‘No’ on the first question (the original public meaning of the Reconstruction Amendments did not include same-sex marriage, but did eradicate slavery and all its badges and incidents), but decided ‘Yes’ on the second question (the Equal Protection Clause and the Full Faith and Credit Clause demand that marriage licenses acquired from states with gay marriage laws must be accepted in every state in the Union, though states without gay marriage laws may retain their traditional marriage laws for the time being). Wouldn't it be fair to say that position has substantive, non-anti-gay merit as a constitutional argument, and yet also preserves the legitimizing function of the democratic process for LGBT activists? It seems that within a few short years, they would have won over holdout legislatures (which would have cut ‘religious liberty exemption’ deals and called it a day), and in the meantime gay marriage would effectively be available everywhere. Instead, we're going to have a gigantic fight about Christian bakers, butchers, and candlestick makers.

2. Given that the above option was a possible option, mentioned both by Scalia and Roberts at oral argument (meaning they were willing to compromise with Kennedy to avoid a ‘Yes’ answer on the first question), why isn’t the poor drafting and weak legal reasoning of Kennedy’s Obergefell opinion a consequence of his unwillingness to compromise on the first Question Presented, rather than anything else? It seems like constitutional scholars should pay attention to this feature of Obergefell if they are going to claim Justice Kennedy is the new Earl Warren (e.g., Akhil Reed Amar), despite the fact that 4 dissents were issued in this case, all of which focused on the first question but not the second, which Kennedy handled summarily.

3. Why isn’t Justice Thomas’ argument that anti-miscengation laws arose of out slavery and therefore by implication should have been eradicated by the Thirteenth Amendment a serious challenge to the logic of Kennedy’s reliance on Loving v. Virginia? Couldn’t one reasonably think Kennedy’s failure to directly state that the Reconstruction Amendments should have always been interpreted to provide for equality for African-Americans (despite Plessy, etc.) is a complete and utter disaster of constitutional theorizing and logical reasoning? Couldn’t one also reasonably think that it is a much stronger constitutional argument to make – from the pro-gay rights perspective – that gay Americans have natural rights by virtue of their humanity (‘all men are created equal’) and once state legislatures and fellow citizens, through referenda, have respected these rights and issued marriage licenses, other state legislatures must follow suit and respect these marriage licenses via the FFCC? It seems that vesting rights for gays in a court-concocted notion of ‘liberty’ that conservative scholars will pillory for decades to come is less wise than writing an uncontroversial opinion that says what everyone already accepts about the Reconstruction Amendments, lays out how the FFCC works – thus showing how federalism can promote equality, and disabuses future generations of the notion that gays only have rights because Justice Kennedy was feeling benevolent on the day he took his Obergefell vote, because Courts are purely partisan hackfests and all law is politics.

Posted by: Michael Winfield | Jul 7, 2015 1:07:08 PM

I wish Mark's comment had a "like" button I could click.

The Court exists (should exist) in large part to protect those whose rights are trampled by a democratic majority. If anything, the Court should be ashamed that it waited so long to step up and do so. This decision should have come in 1972 (Baker v. Nelson).

Posted by: Anon | Jun 29, 2015 10:32:57 AM

The people over at SCOTUSBlog are doing exactly what Paul Horwitz said they would do:

[T]he constitutional law division of the academic corps to turn to what one might call its primary job description in our times: serving as a kind of collective esprit d'escalier for Justice Kennedy. A similar call to duty arose after United States v. Windsor was released. Volumes of articles since then have sought to rewrite Kennedy's opinion in Windsor, to explain what it "really" meant, to uncover its purported hidden genius, to argue more or less convincingly that it's much better or clearer than people have said--or, failing all that, to defend the virtues of obscurity in judicial opinion writing. It is astonishing how much of the legal academy and its resources have become devoted to serving as post-issuance re-drafters of the opinions of one lone judge.

Posted by: brad | Jun 28, 2015 9:33:43 PM

"the right to marry entails"

It explains "four principles and traditions" that make up the right to marry. Past cases do as well; Turner v. Safley (one of many non-Kennedy opinions cited) has a long discussion on the aspects of marriage authorized by the state.

The right to vote is a "fundamental right," but states are "in general free to vary" it in various ways limited by certain constitutional requirements. The same is the case for the right to marry and citing a single line does not change that. Past cases limit the discretion in various respects.

The opinion does not "barely" cite other opinions and its general principles will provide guidance to other cases involving same sex couples in non-marital relationships among other things. With apologies, I think those praising it at SCOTUSBlog and elsewhere more fairly address it. The baseball opinion btw is ridiculed because of one section. People should look past such things as they should look past some purple prose here.

Posted by: Joe | Jun 28, 2015 1:06:38 PM

You (and Justice Roberts) mistake what LGBT people wanted. Not approval from the heterosexual community, but the right to marry, full stop. If a man's lifelong partner is on his deathbed and the two want to marry, would you tell him to wait until a majority of Alabamans approve, because his marriage vows will feel more legitimate?

Popular legitimacy and popular approval are irrelevant. The goal was equal rights. Just as the goal in legalizing interracial was not earning approval from racists, but enshrining equal rights.

You also mistake the role popular opinion has played in these decisions. The Court's decisions track the polls. Does anyone doubt that five justices felt this way two years ago?

Posted by: Mark | Jun 28, 2015 12:49:29 PM

The majority opinion doesn't show what the right to marry entails. If anything, on page 16 it suggests it doesn't have any minimum content at all -- "Indeed, while the States are in general free to vary the benefits they confer on all married couples ..." Seemingly the only content to this due process right is the requirement that it be offered on a non-discriminatory basis. That sure doesn't sound like any other due process right I've ever heard of.

The majority opinion provides no guidance on any other issue to any other court -- lower or future. It cites barely anything beyond other Kennedy opinions that were likewise incoherent. It is more op-ed than legal opinion.

If it weren't on such an important issue, it would end up in the same pile as Blackmun's heroes of baseball opinion.

Posted by: brad | Jun 28, 2015 9:03:59 AM

"Instead we got pages and pages of paeans to the glories of marriage and a few paragraphs about the intertwined nature of the due process and equal protection clauses. I'm happy with the bottom line, but what crappy work product. Too bad Ginsburg didn't write the opinion."

It is unclear to be why the approach was a bad one given the cases were about marriage. Look past the flowery language as some will do regarding the bitter tones of the dissents. The "work product" shows what the right to marry entails and thus how same sex couples fit into a wider mosaic. Making it about them alone is a questionable strategy as is pages of calling out society for being so homophobic.

This more positive inclusive and less expansive approach is pragmatically a good idea and I think RBG agrees. See also her views on Roe v. Wade. If you are going to make such a big move regarding scrutiny, which will directly affect a range of things, ask them to argue that specifically.

Posted by: Joe | Jun 27, 2015 12:14:20 PM


I am also a linguistic purist, and I disagree with your explanation of what a "troll" is. Trolling requires neither rudeness nor anonymity. Trolling is, instead, posting comments for the purpose of disrupting a conversation and without regard to any belief in the content of the comment. Specifically, it's a bit like a "red herring," saying something very outlandish and extremist, knowing that such a comment will draw attention, diverting attention away from the more serious conversation.

Concern trolling is when the troll purports to agree with the values of the community being disrupted, but then goes in an extreme or absurd direction with them. This is closely related to the Poe's Law phenomenon.

Posted by: Derek Tokaz | Jun 27, 2015 12:03:21 PM

Barry, I am a linguistic purist and reserve the term "troll" for those who post gratuitously rude remarks anonymously. Anonymity combined with rudeness suggests the cowardice and malice that define the species. But continue to use you own lexicon, showing the courage of your convictions and good manners in whatever way you please.

Asher, Loving was a unanimous opinion (with Stewart concurring in the judgment on slightly different but no less emphatic grounds). There is a world of difference, in my mind, between the legitimation conferred by a unanimous opinion and a 5-4 decision where the justices split on obviously partisan lines. The former declared to the states of the former Confederacy that they had lost any support in the rest of the nation. The latter simply tell people what they already know -- that the nation is divided. That's why Warren struggled so hard to win Stanley Reed's vote in Brown v. Bd of Education -- because Reed, as a Southerner, would legitimize the decision.

I doubt that the Court's decisions in Bush v. Gore or Citizens United conferred a lot of legitimacy on either the Bush II Presidency or the cause of corporate campaign contributions. Why do you think that this opinion confers much legitimacy on the cause of gay and lesbian equality? Why does it not suggest merely that the Court, like Congress and the populace as a whole, is polarized on the issue? Would it not be better to gain the "dignity of legislation" (to use Waldron's phrase), showing to the nation that, like the former Confederacy, the enemies of gay and lesbian equality had lost the mandate of popular sovereignty?

Posted by: Rick Hills | Jun 27, 2015 11:07:06 AM

While it may be the case that lower courts will have a hard time finding a rational basis for laws that discriminate against gays and lesbians, it would have been far better to have found that given the nation's long history of discrimination against gays and lesbians classifications that discriminate on the basis of sexual orientation have to be justified by an exceedingly persuasive justification.

Instead we got pages and pages of paeans to the glories of marriage and a few paragraphs about the intertwined nature of the due process and equal protection clauses. I'm happy with the bottom line, but what crappy work product. Too bad Ginsburg didn't write the opinion.

Posted by: brad | Jun 27, 2015 10:51:18 AM

I'm still not sure how "instead of having to defend anti-gay policies on the merits, they can invoke the principle of popular sovereignty, piously disclaiming any opinion on the merits of the controversy while vociferously insisting that it is the right of the people to decide the question." Is this how it works for abortion? No. They also appeal to the merits here. Why is this different?

In fact, the case doesn't even answer all the questions there, no more than Loving v. Virginia ended all questions and issues of race discrimination. There still can be various laws and policies passed to address "bias against same-sex couples" including hate crime laws. The breadth of religious freedom laws is still a matter of debate. Policies involving private businesses and a slew of things to help same sex couples get full de facto equality. And, debate in private settings, including churches and so forth.

The author agrees with the first comment regarding how it is 'necessary,' including for those who are sick and might live to see Alabama or the like change their laws. So, why does the ruling that protects these people "provide no great benefit"? The well being of even thousands who now get a chance to marry before they cannot because of death or a few years of equality to benefit children etc. is a "great" benefit in my eyes.

Finally, SCOTUS declaring it the law of the land provides a special message of legitimacy. Gays and lesbians & those who love them etc. know this. That is why they were so ecstatic yesterday. This grants that it is better when these things can be done without court action. This is the case for any number of rulings. But, given the benefits of the ruling and how it will serve as a push for more, I'm not seeing net the "setback." The population as a whole support SSM and the arch is only going up there. This ruling is probably more popular than Citizen United or Heller, cases with much more likelihood of negative blowback. And, even there, there really hasn't been much burdensome action.

Addendum: I do wish that a few years ago that SCOTUS dealt with a half-way issue in this area, such as recognition of an out of state marriage or divorce degree or something. Also, it should be noted that most states have laws that block democratic action, mini-DOMAs in their Constitution like Prop 8. These as one SCOTUSBlog essay noted shut off democratic action. Five years ago, it would have been possible to conceive of a ruling striking them down under Romer. Too much water under the bridge now for half-measures though.

Posted by: Joe | Jun 27, 2015 9:14:37 AM

Rick, perhaps you could link to your extensive list of posts dissing right-wing SCOTUS atrocities?

There should be gigabytes of them.

Posted by: Barry | Jun 27, 2015 9:01:34 AM

Seconding Ben, I'm demanding that concern trolls back their statements.

Rick: "On the other hand, it seems to me that Obergefell provides political cover for the enemies of gay and lesbian equality. Now, instead of having to defend anti-gay policies on the merits, they can invoke the principle of popular sovereignty, piously disclaiming any opinion on the merits of the controversy while vociferously insisting that it is the right of the people to decide the question. "

They have already been doing that, or were you asleep since 2000?

To the other posters here - guys, concern trolls are sooooooooo last decade.

Posted by: Barry | Jun 27, 2015 8:54:47 AM

I understand you think Loving and Obergefell were/are rightly decided and are only raising concerns about the costs of Obergefell's short-circuiting popular legitimation of gay marriage. But how great are those costs, and are you discounting the extent to which this decision legitimates gay marriage? Take Loving. Did Loving have similar costs to the ones you predict Obergefell will have, at least in the dozen or so hold-out states that never got the chance to democratically repeal their interracial marriage bans? Would repeal have been "far more legitimating" of interracial marriage in the South? I was born 20 years after Loving was decided, but it's my sense that the Court did a lot in its way to discredit interracial marriage bans and erode support for them - perhaps just as much as the process of repeal in the hold-out states would have done - and that after some time passed, large majorities in the South came to believe that the Court was right, in part for the very reason that the Court decided what it did. I do think that the Constitution, and the Court's interpretations of it, have a kind of moral authority in this country that ballot initiatives and decisions of state legislatures lack, and that when the Court decides a form of discrimination is unconstitutional, the Court's decision can persuade the supporters of that discrimination that they were wrong. There's a lot more about this decision to legitimate gay marriage than "Kennedy's prose," which very few Americans will read; there's a final decision from an institution Americans still hold in fairly high esteem that gay marriage bans violate a document Americans venerate, and that decision is based on essentially moral and politico-philosophical arguments that have a fair amount of power to persuade. I think that's something you underestimate. But I do agree that this decision and its timing prevents gay marriage from attaining one kind of legitimation, and that that has costs; I'm just honestly not sure how big that cost is, or whether the cost in democratic legitimation isn't offset by another kind of legitimation.

Posted by: Asher | Jun 27, 2015 12:07:19 AM

What evidence is there that the judicial recognition of rights causes more of a backlash than the legislative recognition? Many people seem to believe this and it sounds superficially true, but surely we have opinion polls and this can be studied. Roe, for example, has certainly faced backlash but is currently supported by 60% of the population. Leaving aside the fact that some states would likely never have legalized abortion, why would we think that legislative enactment in some state could have garnered more national popular support?
If we are just relying on anecdotes, surely the most compelling anecdote is Goodridge, which seems to have done a good job of putting gay marriage on the path to go from 0 to 50 state legality in 11 years. Would you assert that if the Massachusetts legislature (leaving aside the fact that it could not have happened even in Massachusetts) had voted in gay marriage in 2004 there would have been progress? I think it unlikely.

Posted by: Ben | Jun 26, 2015 9:24:49 PM

Asher, I believe that both Obergefell and Loving were rightly decided. As I said to Anon, the rightness of a decision does not mean that the decision has no costs. Call it a "tragic choice," to use Calabresi's term. The cost in Obergefell is that a nationwide legislative trend that was discrediting the opposition to gay and lesbian equality has now been terminated by SCOTUS. Real human costs may require such an end to politics, but this imperative does not mean that we have to pretend that there is not a real cost to the end of a process that is, in the end, far more legitimating that Kennedy's prose.

There is a myth out there that gay and lesbian equality is the hothouse plant of elite opinion, not the conviction of a majority of Americans. Call it the "Knight Templar" fallacy. Obergefell reinforces that myth, giving the enemies of equality an effective talking point.

Does that sad truth mean that Kennedy should have switched his vote? Of course not. But academics ought to face hard truths, and the hard truth of Obergefell is that it deprived the advocates of gay and lesbian equality of an opportunity to end the "Knights Templar" myth.

Posted by: Rick Hills | Jun 26, 2015 9:13:01 PM

Agreed, Anon: Hence, my statement that the decision was "inevitable and necessary."

The necessity of a decision, however, does not exclude that decision's having real costs. And one real cost is the short-circuiting of a series of democratic victories yielding legitimation far more effective than a 5-4 and hotly disputed judicial decision. Telling fence-sitting moderately conservative Americans that their fellow voters strongly support gay equality is a far more effective way of advancing that cause than having five out of nine lawyers sign on to Kennedy's opinion.

Posted by: Rick Hills | Jun 26, 2015 8:44:36 PM

Would you say the same of Loving? I can see that legislative successes might be more legitimating than this, but is that an argument that this decision should never have happened or just an argument that it comes a little early? It would be very dissatisfying if the legality of interracial marriage bans were still an open question today, even if every state had repealed them.

Posted by: Asher | Jun 26, 2015 8:42:08 PM

"provides political cover for the enemies of gay and lesbian equality"

How? If it's a great thing to do, they can support it as a matter of policy, the New Republic view of abortion rights. If they don't, they cannot just appeal to democratic process. They are telling their right leaning advocates that they OPPOSE rights when put to a vote

"stole democracy’s thunder"

It's somewhat hard to accept that merely because the ruling was narrowly decided (like various constitutional rulings) this statement was made. The concern seems to be that it's just a matter of time. Anon is correct there. How long should they wait? As Solicitor General Verilli noted in oral argument, the result will for some number of years, there will be certain places where same sex couples don't have the right to marry. "Wait a bit longer please" is presumptuous.

Posted by: Joe | Jun 26, 2015 8:07:03 PM

No disrespect intended at all, but statements like "The best way to discredit bias against same-sex couples – or so it seems to me – is to promote democratic internment of such bias by statute and ordinance" do nothing to help gays and lesbians like the petitioners in Obergefell who were suffering real and lasting harm RIGHT NOW because their rights were abrogated. How long do same sex couples in states like Alabama need to wait before it's OK for a court to recognize their equality?

Waiting for democracy is not always a responsible way to protect the fundamental rights of real live human beings.

Posted by: Anon | Jun 26, 2015 6:02:21 PM

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