Sunday, July 19, 2015

Obergefell v. Hodges (at Last)

So, at last a post on the Supreme Court decision of Obergefell v. Hodges, the decision saying that same sex marriage is mandated by the Constitution.  What can I say?  Anthony Kennedy broke joined the liberal bloc in voting for same sex marriage.  He wrote the majority opinion, presumably because being written by a conservative would give it greater heft.  All four conservative judges wrote separate dissents, most joining each other.

Given that the Constitution says nothing whatever about marriage, let alone same sex marriage, finding such a mandate in the Constitution is a challenge, but the majority was up to it.  They rested their opinion, first and foremost on the theory of "substantive due process."  What is "substantive due process"?  Well, the Fifth Amendment says that no one shall be deprived of life, liberty, or property without due process of law, but it applies only the the federal government.  The Fourteenth Amendment applies the same requirement to the states.  Substantive due process says that "liberty" means more than just that no one may be imprisoned without a fair trial, but that the government may not infringe on certain "fundamental rights."  Which rights are "fundamental"?  Well, the ones enumerated in the Bill of Rights, certainly, but some other, very ill-defined rights as well.  What determines what these other "fundamental" right are?  Well, that is extremely unclear.  "History and tradition," for one, Kennedy says, but obviously history and tradition do not support same sex marriage.*  Nonetheless, the Supreme Court has recognized the right to marry as fundamental.  It recognized such a right in the case of interracial marriage (Loving v. Virginia, 1967), men owing child support (Zablocki v. Redhail, 1978), and inmates (Turner v. Safely, 1987).  The majority then goes on to set forth various decisions expanding the recognition of the rights of gays.  And it offers four principles to show that the fundamental right to marry applies to same sex couples as well, (1) choice of who to marry is inherent to personal autonomy, (2) marriage is a unique form of commitment between two individuals, (3) children of same sex couples should not be stigmatized, and (4) marriage is the keystone of the social order.  Finally, the opinion declines to wait for the decision to be made through the democratic process because fundamental rights should not have to wait.

Roberts, Scalia, and Thomas wrote separate dissents, each mostly joined by the others, none of them attacking same sex marriage on the merits, but all denying that it was a proper issue for the Supreme Court.  Roberts, as is his custom, was the most restrained.  He rehearsed a long-familiar litany of bad cases made on substantive due process grounds, from Dred Scott to early 20th century cases striking down labor protective regulations and said that these are an example to be avoided.  He did not conclude from this, however, that the doctrine of substantive due process, but merely that it should be limited to cases supports by "history and tradition."  He points out that while the institution of marriage has changed, its basic definition of marriage as the union of a man and woman has not. Scalia's dissent is shorter, saying that the matter should be left to the political process, which can more easily reach an appropriate compromise than the absolutism of a judicial ruling, and that the "fundamental rights" doctrine invoked by the majority is completely arbitrary.  Thomas's dissent is bolder than his colleagues', rejecting "substantive due process" altogether.  "Due process" and "liberty" simply mean that no one may be imprisoned without a trial.  To the extent that it means anything more, it means purely negative liberty, such as the right not to be prosecuted for homosexual acts, not positive rights, such as the right to have one's relationship formally recognized.

Alito did not join in any of these dissents, but wrote one of his own, joined by Scalia and Thomas, the only only to attack same sex marriage on the merits.  He also argues that the decision should be left to the democratic process, but also argues that the idea of marriage as being primarily for the benefit of the spouses is not traditional; traditionally marriage is for the sake of children.  This is a standard argument against same sex marriage, but not really all that convincing.  Certainly, children have traditionally been an important part of marriage, but that is not quite the same as saying that children are the entirety of marriage.  Nor is this an either-or.  Marriage can be for the benefit of children, for the benefit of the spouses, and for the benefit of the larger society all at once.  The best proof that the idea of marriage as for the benefit of spouses is neither new nor radical nor particularly Christian comes from the epistles of St. Paul on the subject of marriage.  They discuss at length the proper relationship between a husband and wife without ever so much as mentioning children.

*It should be added, though, that contrary to what the court opinion says, such practices did exist before 2000.  In parts of Africa, a woman who pays a bride price can take another woman as "wife" and be considered her "husband."  In such a marriage the woman-husband will have the same prerogatives as a male husband and can assign the wife a male sexual partner and be considered "father" of her children.  In some American Indian cultures, men might adopt the female role in life and be taken as "wives" by other men.  But these were not same sex marriages in the modern sense -- a partnership between equals.  They continued to maintain the unequal roles of husband and wife.

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