Some More Thoughts on Obergefell v. Hodges
UEA's Dr. Emma Long second piston the recent Supreme Court rulings on same-sex marriage. You can find the first post here.
Much has been written and said about the Supreme
Court’s ruling in Obergefell v. Hodges
since it was handed down a month ago.
As with any issue of similar controversy, the commentary has reflected
both support for and criticism of the Court’s actions. Perhaps because of both the relatively
recent nature of the case and the fact that many with strong views submitted
so-called amicus (“friend of the
court”) briefs to the Supreme Court expressing their views, many of debates
thus far have reflected views offered by the Justices in their various
opinions. In this post, I want to
consider some of the most common criticisms of the holding that same-sex
marriage is protected by the US Constitution.
Politics
In dissent, Justice Antonin Scalia called the
Court’s opinion “a threat to American democracy” (p.1). He also argued that it violated the
principle of self-government established by the American Revolution and the
Declaration of Independence. In
one form or another all four of the dissenting Justices (Scalia, John Roberts,
Clarence Thomas, and Samuel Alito) expressed the view that the democratic
process had been circumvented or ignored, an argument that has been repeated by
commentators critical of the ruling.
This criticism has several different components: the Justices of the
Court have exceeded their authority, rights are better obtained through the
political process, and the decision undermines the traditional power of states.
As discussed in my previous post, the argument
about judicial overreach rests heavily on the view that permitting same-sex
marriage created a new right, rather than simply granting access to an existing
right for groups who had previously been excluded. Liberals who support the ruling have been far less likely to
see judicial overreach than conservatives who object to same-sex marriage (just
as, for example, liberals decried the Court’s 2013 decision overturning
portions of the Voting Rights Act as judicial overreach, while many
conservatives supported it).
Personal views about the result in the case are likely to have a
significant impact on whether individuals see the Court as acting within or
outside of its bounds.
In a widely quoted passage from his dissent, Chief
Justice Roberts argued that the Court’s decision denied same-sex marriage
advocates “the opportunity to win the true acceptance that comes from
persuading their fellow citizens of the justice of their cause” (p.27). Debates about same-sex marriage had
occurred in all 50 states in recent years; in some states same-sex marriage
advocates had won, in others they had lost. This is how democracy should work, according to this
argument, not by having five unelected judges impose a point of view on the
entire nation. Acceptance is
better achieved by convincing your opponents of the rightness of your view, not
by enforcing it upon them. This
is, however, a simplistic view of both the reality of the situation in many
states and the Court’s general approach to protecting individual rights.
As Justice Anthony Kennedy pointed out for the
majority, many states passed constitutional amendments barring same-sex
marriage. Constitutional
amendments are by design much harder to overturn than ordinary legislation, a
fact that clearly motivated the provisions in many states: opponents of
same-sex marriage wanted it to be harder to overturn their traditional
view of marriage. Thus same-sex
marriage advocates were, in the view of Kennedy and others, virtually shut out
of the democratic process because it would take extraordinary political debate
to overturn a constitutional amendment.
In addition, while such amendments were, in most cases, supported by
majorities of the state population, in many instances the debate surrounding
the passage of those amendments included clear instances of anti-gay sentiment
(this is not to say that everyone who opposed same-sex marriage held these
views, only that the debates broadly were tainted as a result of some who
did). State approval of such
measures thus ran the risk of being seen as state approval of discriminatory
views. The purpose of the Bill of
Rights was to “withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials” wrote
Justice Robert Jackson in 1943 in the midst of World War Two. He continued: “fundamental rights may
not be submitted to vote; they depend on the outcome of no elections,” a view
that the Court has held to now for more than seventy years. For Kennedy and the majority who saw
access to marriage, regardless of gender, as a fundamental right, Jackson’s
view was controlling: it was not enough to say that same-sex marriage advocates
should win their battle through the political process because the nature of the
right they claimed was important enough not to have to rest on uncertain
political processes influenced, in part, by those who disdained their choice of
partner.
The third element of the “threat to democracy”
argument rests on the federal nature of the American political system. Laws governing marriage have
traditionally been the province of the states, as Kennedy himself noted in US v. Windsor two years ago when
striking down a national law which prevented the federal government recognising
same-sex marriage in those states where it was legal. Critics of Obergefell
argue that Kennedy both ignored his own opinion and trampled over a traditional
state right. Again, however, this
rests on a question of perspective.
Windsor did not raise the
question of whether the Constitution protected the right to same-sex marriage,
only the question of whether a federal law could supersede state judgment on a
policy issue. The Court said no,
it could not; state authority in this matter was paramount. But Obergefell
asked a different question: whether equal access to marriage was a fundamental
right protected by the Constitution.
Answered in the negative (as opponents do), there is no right to counter
the power of the states to define marriage. Answered in the affirmative, however, under the Court’s own
precedent, state authority must yield unless there is a compelling government
reason: the majority did not find one.
Again, a position on the “new versus old right” debate is likely to
influence the view of state versus federal power on this issue.
Religion
Even before the Court handed down its decision in
June critics had argued that a ruling in favour of same-sex marriage would
violate religious liberty.
Religious groups are divided on same-sex marriage and can be found on
both sides of the debate. Religious
conservatives have, however, been among the most vocal opponents of same-sex
marriage, arguing, in general, that because their faith regards homosexuality
as a sin they cannot condone or support same-sex marriage without violating
their faith. While there are
issues of belief here, there are also important pragmatic questions: will
religious bodies be forced to conduct same-sex marriages? If same-sex marriage is a fundamental
right, does a religious business owner have a right to refuse service on the
basis of their beliefs? Many of
these debates have been running since Massachusetts became the first state to
legalise same-sex marriage in 2003.
Business owners have been sued under anti-discrimination legislation in
at least six states for refusing, on the grounds of their faith, to provide
wedding services to same-sex couples, a fact used by many religious leaders as
evidence of a campaign of discrimination against believers. A number of states, including Indiana
and Arizona ran into trouble when seeking to pass “religious freedom” laws which
would protect religious business owners from legal retaliation for refusal of
service on religious grounds, laws portrayed by opponents as “freedom to
discriminate” bills.
The situation is complex but not as dire as some
religious commentators have argued.
In all states which legalised same-sex marriage through the legislative
process before Obergefell,
protections for religious bodies were included in the legislation. No religious group or denomination
would be forced to conduct same-sex marriages, just as none are required to
marry those who are previously divorced, for example. Religious bodies retain control over to whom they administer
the religious marriage rite; it is a long-standing tradition, protected by the
First Amendment, and nothing about same-sex marriage appears likely to change
this.
The case of denial of service issues is legally
more complicated. Supporters of
same-sex marriage compare denial of service on the grounds of sexuality to
denials of service on the basis of race which the Court struck down in the
1960s. But in terms of the law, as
it currently stands, the two are not quite the same. Since the middle of the 20th Century, the Court
has subjected laws which differentiate on the basis of race to its toughest
test, known as strict scrutiny.
States must have a compelling reason and a tightly written law to meet
that reason in order for the law to stand. It is, as intended, a tough test, designed in recognition of
the damage done by a long history of legalised racial discrimination. In the 1970s advocates of sex-based
classifications appealed to the Court to treat gender in the same way as
race. The Court did not go quite
so far but did pursue a policy of heightened scrutiny in sex-discrimination
cases, arguing states must have a significant justification and a carefully
worded law. However, the Court has
never clearly stated whether it sees discrimination based on sexual orientation
as liable to strict or heightened scrutiny, in fact Kennedy in particular has
appeared to go out of his way in all of his gay rights opinions to avoid
stating such a clear test. Obergefell is no different. This leaves gay rights supporters and
religious business owners in something of a legal limbo when it comes to denial
of service claims, unclear about the legal test which should be used and thus
unclear as to what might be considered legally acceptable or otherwise. Several of the state level courts which
considered same-sex marriage before the Supreme Court addressed this issue of
scrutiny but there is no national consensus, making such questions legally
complex. It is likely that the
next round of cases linked to same-sex marriage will come in this area.
Discrimination
In his dissent, Chief Justice Roberts accused the
Court’s majority of vilifying Americans who continue to support a traditional
view of marriage. Similar
criticisms have been made in the public debate. In terms of Kennedy’s opinion, a close reading of the text
would suggest this is an unfair reading of his words. Kennedy does not claim that those who oppose same-sex
marriage (people with “reasonable and sincere” views, he notes) demean same-sex
couples or impose a stigma upon them.
What he argues is that when the state passes laws which exclude
same-sex couples from activities available to opposite-sex couples the state
actions demean and stigmatise those excluded. Applying this to suggest that Kennedy and the Court’s
majority vilified or stigmatised opponents of same-sex marriage, or as Alito
suggested, set them up for public labelling as bigots if they dare express
their views in public, is pushing the Court’s wording too far. That is not to say that some involved
in the political debate might not do exactly that, and it is to be hoped that
most will avoid debate in these terms, but laying the foundations of this
debate at the steps of the Court is not a fair reading of the Court’s ruling.
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