By Dan Urman
The Supreme Court issued a landmark 5-4 opinion on June 26, 2015 that calls for marriage equality across the United States. In soaring and emotional language, Justice Anthony Kennedy, speaking for the majority, declared that no state or locality can prevent same sex couples from marriage. The opinion, based on the 14th Amendment, entrenches marriage equality in the U.S. Constitution. Going forward, the only way to deny fundamental marriage rights to same sex couples is through a formal amendment to the Constitution or appointing Justices that will overrule the decision.
In many ways, the opinion read like a “Master Class” for the Law & Legal Reasoning courses I teach in the Doctor of Law and Policy program. The Justices debated concepts like the meaning of liberty, the role of the Supreme Court in a democracy, and whether the Constitution’s commands adapt to the modern era or should be frozen in time.
Justice Kennedy, somewhat surprisingly, focused on the 14th Amendment’s Due Process clause and the fundamental right to marry in his analysis (this came up in a Doctor of Law and Policy assignment from last summer). The opinion expands fundamental marriage rights to same sex couples, with a shorter discussion of Equal Protection principles. As the dissents point out, the Equal Protection analysis is almost an afterthought.
This line from the opinion is unambiguously supportive of a “Living Constitution”:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
Somewhat unsurprisingly, Justice Kennedy did not announce a level of scrutiny for his decision. This could make it difficult for lower court judges to apply this case to new situations.
Chief Justice John Roberts suggests that decisions about marriage equality are best left to the ballot box and legislature, not courts. He is a “Minimalist” in his analysis and disagrees with the process by which the nation adopted this policy. Roberts noted:
“By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.”
He even uses his colleague Ruth Bader Ginsburg’s discussion of Roe v. Wade (comparing today’s decision to Roe) to bolster his point. “As a thoughtful commentator observed about another issue, “The political process was moving…, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.” Ginsburg joined the majority on marriage.
As expected, Justice Antonin Scalia has some choice quotes (especially where he compares Justice Kennedy’s language to something you would find in a fortune cookie), but his lines about judicial diversity (or lack thereof) are a bit off the mark:
“Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
As I have discussed in my classes, the current Court lacks diversity in many ways (education, professional background, region), and embodies it in others (race, gender). Scalia criticizes the fact that Justices have similar backgrounds, but it is not as if this led to identical legal reasoning. There were, after all, four Ivy League Justices in dissent! The case contained four separate dissents. Also, as a native Californian, I was surprised to learn that it did not count as a Western state.
Going forward, there will be many questions about the relationship between this ruling and religious liberty under the 1st Amendment. For now, same sex couples and their allies have much to celebrate on this historic day, June 26th. I do not think it is an accident that the Court (and Justice Kennedy) issued the opinion the same day it issued Lawrence in 2003 and Windsor in 2013. Justice Kennedy will be forever known for his central role in securing liberty and justice for all.
(image from Wikimedia Commons)