In the aftermath of last week’s same-sex marriage ruling, almost every liberal media reaction was a variation on two themes: adulation for Justice Anthony Kennedy, whose majority opinion focused on the “dignity” of gay and lesbian Americans; and gleeful scorn for the Court’s four conservative justices, each of whom wrote a dissent accusing the majority of usurping the democratic process. The New York Times editorial, while more measured than online commentary, was representative, hailing Kennedy’s opinion as “profound and inspiring” while dismissing the “bitter, mocking small-mindedness of the dissents.”
The Court reached the correct result, but for the wrong reasons.
The dissents certainly contain their share of petulant gripes, bizarre references (like Chief Justice John Roberts’s instantly infamous line about Kalahari bushmen and Aztecs), and apocalyptic histrionics (like just about all of Justice Antonin Scalia’s opinion). But they also make a legitimate point. Roberts ends his dissent by encouraging Americans who support same-sex marriage to celebrate the majority’s ruling. “But do not celebrate the Constitution,” he adds. “That had nothing to do with it.” And the thing is, he’s right. Kennedy’s opinion really doesn’t have anything to do with the Constitution, even though it should and easily could have. The Court reached the correct result, but for the wrong reasons.
A close reading of the dissents shows that much, maybe most, of the conservatives’ outrage is directed not at the outcome of the case (though they’re obviously mad about that) but at the reasoning Kennedy uses to get there—specifically, his unapologetic use of a legal doctrine known as substantive due process. The Due Process Clause of the Fourteenth Amendment says that the states can’t “deprive any person of life, liberty, or property, without due process of law.” That’s normally understood to refer to the procedures the government must go through before putting you in jail or taking your property. The theory of substantive due process, on the other hand, is that there are certain rights outside the Constitution that are nevertheless so fundamental that the government can’t infringe upon them, even if it goes through all the normal steps of the legislative process.
That’s a dangerous doctrine in a democracy, because the question of what rights are “fundamental,” and when state interference goes too far, leaves enormous discretion for appointed judges to rule according to their personal beliefs. As Roberts points out, substantive due process was behind some of the most regrettable decisions in Supreme Court history: in Dred Scott v. Sandford, the Court held that granting a slave his freedom because his master brought him into a free state would violate the master’s fundamental right to property; and in Lochner v. New York, the Court struck down a law setting a maximum 10-hour workday for bakers on the grounds that it violated the fundamental freedom of contract. Liberals will scoff at the idea that slavery and labor exploitation are analogous to marriage equality, but that’s exactly the point: unless there’s overwhelming historical consensus, the lack of a constitutional hook means it’s hard to judge a substantive due process ruling except according to whether you agree with the outcome. Roe v. Wade, after all, was a substantive due process decision.
The logic of the majority opinion, which is tough to follow, runs something like this: first, Kennedy says, marriage is “essential to our hopes and aspirations.” (As Justice Clarence Thomas’s dissent observes, Kennedy seems to be claiming that married life is inherently more valuable than being single. One wonders what the unmarried Justices Elena Kagan and Sonia Sotomayor make of that.) Then, he divines four principles that make marriage a fundamental right: it is an exercise of individual autonomy, embodies a commitment between two people, protects children, and is “a keystone of our social order.” Keeping same-sex couples out of such an important institution is unconstitutional, he concludes, because it demeans them and denies their dignity and autonomy.
These points may be stirring, but they have little to do with the Constitution. The dissenters agree that marriage is a fundamental right. The question was whether marrying someone of the same sex is part of that right, and Kennedy’s ode to the splendors of matrimony doesn’t answer it. The dignity point is appealing, but frustratingly, Kennedy doesn’t explain its legal significance; he jumps from the observation that excluding gays and lesbians from marriage is bad for them to the conclusion that it’s unconstitutional.
That’s why the dissenters have a point when they accuse the majority of hijacking the democratic process. The Supreme Court’s job is to decide the law, not public morality. As Roberts puts it, only a little uncharitably, “Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.” That’s the sort of judgment legislatures, not judges, are supposed to make.
It’s hard to fathom why Kennedy based his ruling on such ephemeral grounds when there was a far more convincing, rigorous, text-based rationale available.
It’s hard to fathom why Kennedy based his ruling on such ephemeral grounds when there was a far more convincing, rigorous, text-based rationale available. The Supreme Court has long held that the Equal Protection Clause of the Fourteenth Amendment forbids the state from treating groups of people differently based on immutable characteristics like race and gender, unless the state has a really good reason. For most of American history, of course, homosexuality was seen as a behavior, not an identity. But in the past few decades, it has become clear that sexual orientation is not a choice. That means limiting marriage to opposite-sex couples denies gays and lesbians the opportunity to get married because of an immutable trait; in other words, it denies them the equal protection of the law.
Kennedy could have struck down the same-sex marriage bans on the ground that sexual orientation-based discrimination should, like gender discrimination, be subject to heightened scrutiny, under which the state has to prove that the law actually furthers an important government objective. Or he could have held, like Seventh Circuit Judge Richard Posner, that even if sexual orientation isn’t entitled to the same protection as gender or race, forbidding same-sex marriage fails even the easier “rational basis” test. The states’ rationales for preventing same-sex marriage were laughably weak. Roberts defines the state’s interest as “preserving the traditional definition of marriage,” as if the Constitution allows discrimination in the interest of keeping things the way we’re used to having them. Alito’s dissent tries to defend the theory that allowing gay and lesbian couples to marry may discourage heterosexual couples from marrying—an argument so ridiculous that to state it is to refute it.
But as the dissenters point out, Kennedy doesn’t even bother making the equal protection argument. Instead, he refers inscrutably to the “synergy” between due process and equal protection, without ever explaining how the Equal Protection Clause should factor into the decision.
That’s a shame. An equal-protection ruling would have provided more relief from discrimination in areas that, unlike marriage, don’t concern a “fundamental right.” It would also have shut down conservatives’ warnings that the opinion must extend to plural marriage, or incest, or bestiality, because banning those activities doesn’t exclude a certain group with immutable characteristic—sexual orientation—from marriage.
An equal-protection ruling would have provided more relief from discrimination in areas that, unlike marriage, don’t concern a “fundamental right.”
Would any of the conservative justices have joined the majority if only the ruling had been based on equal protection? Of course not. But such a ruling would make it much harder to argue that the majority violated the principles of democratic government. The Equal Protection Clause exists precisely to protect minority rights. When a law violates equal protection, the Court has to interfere with majority rule.
It may seem churlish to nitpick Kennedy’s reasoning when the outcome of the case has caused such deserved, unadulterated joy and freed millions of gay and lesbian Americans from a humiliating form of legal discrimination. But the reasoning matters. Kennedy’s opinion really does make it look like the majority simply imposed its policy preferences. It needlessly gives ammunition to opponents like Texas Attorney General Ken Paxton, who has already announced that local officials can refuse to obey the Court’s “lawless ruling” if it conflicts with their religious beliefs.
The dissenters rail against the idea that “a bare majority” of the Court—as Alito, Scalia, and Thomas all put it—could strike down democratically passed laws. Liberal commentators have rightly accused them of hypocrisy, since that notion didn’t stop them from overruling the democratic process in 5-4 decisions like Citizens United. But the hypocrisy runs both ways. Liberal commentators are so overjoyed about the ruling that they seem unable to entertain the possibility that there’s anything wrong with it. Yet it’s possible to celebrate the new right to same-sex marriage, and even to believe the Constitution requires it, while recognizing that the opinion granting it is flawed. Those things can all be true.
Gilad Edelman is a writer in New York and a graduate of Yale Law School.