Pomp & Circumstances

The Same-Sex Marriage Decision
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For those of us who believe in equal rights under the law for gays and lesbians, and who also favor legal same-sex marriage, the Supreme Court’s landmark decision in Obergefell v. Hodges is a victory. One could rest there and say no more. Before we analyze victories, first we celebrate them. The joy and tears of millions of gay and straight Americans over the past two weeks is testament that many had cause to celebrate.

In our culture wars, however, each milestone is just the prelude to the next conflict. There is rarely time to reflect calmly on the various meanings of such events. Too many commentators immediately seek to fix the “real” meaning of the case and secure the strategic high ground for the next battle. That’s too bad. Despite some positive aspects, Obergefell raises many questions and contains some serious flaws.

For those who support same-sex marriage, Obergefell is definitely a victory. But the victory is not primarily one for the Supreme Court—or for Justice Anthony Kennedy, who wrote the opinion. The decision is largely about a change in social consensus. As demonstrated by the opinion’s lengthy list of state laws and judicial decisions allowing same-sex marriage, the Supreme Court was hardly the prime mover in making marriage equality a legal reality. Indeed, the Court spent years avoiding the fundamental question of same-sex marriage’s constitutionality, waiting for public opinion to shift until its decision was virtually preordained. There are heroes in this story; some are even lawyers. But not necessarily the ones who sit on the Court. The real heroes are the many men and women whose public “coming out,” often at risk of disparagement, disinheritance, and even physical harm, transformed national sentiment. The Court’s role was secondary.

The Court certainly plays a role in turning social change into legal fact. But that role is less romantic than anything in Kennedy’s opinion suggests. He hints at this point when he recounts the history of the gay rights movement, writing that “questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.”

Substitute “must” for “could”—an important change—and you have a description of the Court’s proper role. Constitutional phrases like “equal protection of the laws” are not self-explanatory. They require judicial elaboration. And Supreme Court decisions have to be applied by a vast number of lower court judges and government officials. Its decisions must strive for clarity and predictability. Judges and officials should be able to apply them easily and consistently, rather than having to anticipate the mood of particular sitting justices.

The “formal discourse of the law” that results is rarely moving. Equal protection jurisprudence, with its seemingly crisp categories of protected groups and technical language of “tiers of judicial scrutiny,” echoes the workaday prose of instruction manuals more than the eloquence of Abraham Lincoln. It’s dry, even dull. But it is manageable.

The Court’s gay rights decisions have fallen short of this standard from the beginning. Part of the reason for this failure is that the Court lacked either the votes or the will to declare firmly that gays and lesbians are a protected class, and laws targeting them require strict judicial scrutiny. Some of it stems from problems in equal protection jurisprudence itself, which always promised more clarity than it actually delivered. But much of it has to do with Kennedy himself.

Give him his due credit. For those of us who believe gays and lesbians are owed legal and moral equality, Kennedy’s staunch support for gay rights, and his role as “swing justice,” have been crucial. His votes will long be remembered.

His writing and thinking are another matter. From his first major gay rights opinion in 1996 to today, Kennedy’s leading opinions on gay rights have been a jumble of cloudy reasons and purple prose. Proust showed more economy of language; the Oracle at Delphi was less, well, Delphic.

His decisions have relied heavily on “substantive due process” law, finding substantive rights (like the right to abortion) in the seemingly procedural language of the Due Process Clause. This provoked strong criticism from Obergefell’s four dissenters. Identifying new, “unenumerated” fundamental rights does raise questions of judicial legitimacy. But most lawyers have come to terms with substantive due process, while other citizens are unaware of or indifferent to these niceties. More troubling is the weakness of Kennedy’s justifications for finding particular fundamental rights, and the uncertain boundaries of those rights.

Relying on the Equal Protection Clause could have given greater clarity to his opinions. Federal Judge Richard Posner’s opinion striking down Indiana’s and Wisconsin’s marriage laws took this simple tack. Given the long history of discrimination against gays and lesbians, he wrote, “more than unsupported conjecture” is needed to justify laws that permit unequal treatment on the basis of sexual orientation. The states’ reasons for limiting marriage to heterosexuals, he held, were “not only conjectural; they are totally implausible.” His solution was clean and forceful, and avoided the need to delve into the mysteries of substantive due process. Equal protection figures in Kennedy’s opinion; but even that part of the ruling is murky at best.

 

KENNEDY’S GAY RIGHTS OPINIONS have given rise to a strange cottage industry for constitutional law scholars. After each opinion, they set to work on articles purporting to explain and defend Kennedy’s opinions or uncover their “hidden clarity.” A nadir was reached after his opinion two years ago in United States v. Windsor, which drove one scholar to defend “The Virtue of Obscurity” in judicial writing.

The opinion in Obergefell is clearer than Windsor, in bulk if not in specifics. But it is still stuffed with airy generalities—“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity”—and unhelpful college-essay truisms. (“The history of marriage is one of both continuity and change.”) It is clear not because the opinion is clear, but because its bottom line is: the Constitution requires legal same-sex marriage. And so it does, in my view. But Kennedy’s opinion is not so much a demonstration of how or why this should be so as it is a homily, which assumes that it is true and insists that this is a good thing. As Judge Posner’s opinion suggests, there are strong arguments to be made for the constitutionality of gay marriage—and difficult questions about the nature of such a right and what happens next. Neither is addressed satisfactorily here. There are also arguments to be made that at times, it makes sense for the Court to sacrifice some clarity for the sake of some stirring or poetic language. But for bad poetry?

Justice Kennedy’s opinion in Obergefell has been compared to the Court’s famous school desegregation opinion, Brown v. Board of Education. Would that they were more similar. Brown addressed a nation that largely favored desegregation but contained substantial pockets of die-hard resisters. Chief Justice Earl Warren intended the unanimous opinion to be short enough to be reprinted in every newspaper, and simple enough to be widely read and understood. Obergefell is fairly short, but much less clear. Brown left many questions unanswered and its logic was not airtight, but it was admirably direct. Warren understood that Supreme Court decisions cannot change hearts, but can make clear what will no longer be allowed. Its most-quoted sentence—“We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place”—is moving precisely because it does not seek to move anyone. Warren knew that the real emotion would come from the simple fact of the legal holding, and all that it meant.

By contrast, Kennedy reaches strenuously for grandeur, and falls flat. Many people took to Facebook—that modern substitute for meaningful political involvement—to quote Obergefell’s conclusion, which says that “no union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Did they really agree with this? No: surely many liberal readers would protest bitterly if told that cohabitation is less “profound” than legal marriage. Did they find the language terribly moving? It’s doubtful, since it is indistinguishable from a greeting card. The result moved them, not the language. Kennedy should have devoted more effort to clarity and guidance, and less to pomp and sentimentality.     

 

WORRIES ABOUT WHETHER we must now constitutionalize polygamous marriage can be set aside for now as premature, if not silly. Obergefell teaches us neither that the Constitution is limited to two-person marriage, nor that some clear legal principle demands or precludes such an outcome. Rather, it suggests that polygamy will be protected by the Constitution only if enough people strongly believe that it should be, and not before. We are a long way from that moment. But Obergefell raises two more pressing questions.

First, resistance. Will we face the same political division, protracted official non-compliance, and violence that occurred after Brown? Maybe, but I doubt it. The history of discrimination against gays and lesbians is long and its effects far-reaching. But it is less central to American history than our deep struggle over race. Racial segregation, moreover, worked—and still does—by combining legal, social, and economic forces to keep blacks and whites in separate worlds. It is easier for a white person to think of African Americans with contempt when he is not confronted with them as neighbors, fellow parishioners, family, and friends. A major reason that sectors of the Republican Party have shifted on gay rights is the nearness of gay and lesbian sons, daughters, and colleagues, whose unashamed existence changed hearts and minds. Presence, not absence, makes the heart grow fonder. Many changes still need to occur, not least the wider protection of sexual orientation in antidiscrimination laws. Still, I suspect that legal barriers to equality of sexual orientation will fall faster and more easily than those erected on the basis of race.

What of religion and religious accommodation? Must small-business owners write messages on wedding cakes and photograph weddings that they object to? Objecting churches will not be required to perform same-sex weddings or hire gay clergy. But will they be legally branded as practitioners of invidious discrimination, and face the loss of tax-exempt status?  

Here, the outcome is likely to be different and more difficult. Marriage equality advocates have often insisted that same-sex marriage need not affect anyone else’s choices or conduct, and that claims of a threat to religious freedom were baseless. That calculus has shifted. Such concerns are newly plausible. Already, some legal analysts have confidently proclaimed that Obergefell itself clearly (but, oddly enough for a “clear” statement, only impliedly) eliminates any possibility of reliance on religious reasons by lawmakers, no matter the subject of the law. Meanwhile, in the decades since the passage of our nation’s landmark civil rights statutes, the scope of so-called “public accommodations” laws has broadened significantly, leaving more activities subject to state regulation and private lawsuits. And we are seeing an upsurge in stringently egalitarian arguments about what the law requires. Things like tax-exempt status may come to be seen, not as an acknowledgment by government that religion or churches constitute a private or separate sphere, but as a “statement” by government that violates constitutional “values” and must perforce be eradicated. Arguments to the contrary will be painted not as a vote for political and religious pluralism, but as merely reactionary.

Kennedy’s opinion in Obergefell, as the dissenters forcefully point out, nods at the existence of these issues but certainly does not settle them. It assures churches and religious individuals that they can “teach” what they wish about marriage. But it says nothing about whether and how they may exercise their religion consistent with their beliefs on these questions—a strange omission, given that the First Amendment speaks about the free exercise of religion. As Chief Justice John Roberts observed, “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage.” On these issues, the majority is simply—perhaps ominously—silent.

In truth, however, the underlying lesson of the case is that they can’t be settled by legal decisions alone. In the long run, these disputes will turn on the weight of public opinion, not on Kennedy’s own views. That includes changes in public opinion in, and about, religion and religious communities. Many faiths’ own views on LGBT issues have altered and will continue to do so, partly from independent conscientious reflection and partly in response to public and perhaps legal pressure. It is possible that changes in the views of religious groups will occur even faster than changes in the law, and thus render moot many of these difficult questions.

Still, while other faiths and churches may—God willing—become more genuinely loving and welcoming of gays and lesbians, they are likely to remain adamant on particular doctrinal positions concerning homosexuality and marriage. How they will fare as a legal matter is harder to guess. The nature of church-state relations has hardly been static in this country. It has had moments of strong religious pluralism and legal accommodation, and others of unyielding legal “neutrality” and refusal to accommodate, combined with latent and sometimes open hostility to clericalism and ecclesiastical bodies.

Same-sex marriage rights are first and foremost about the couples themselves, and we should celebrate their gain. But of course they will have wider effects. What course the public will choose to take on those matters is hard to predict. It is not clear what Justice Kennedy himself would like to see happen. But that doesn’t matter all that much. Loath as he seems to admit it, his is only one vote in a much larger world.

Published in the August 14, 2015 issue: 

Paul Horwitz is a law professor and First Amendment expert at the University of Alabama

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