Wednesday, 29 July 2015

Dr. Emma Long - The Supreme Court and Same-Sex Marriage II

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.

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.

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.


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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