Reading the four separate dissents last Friday in the Supreme Court’s Obergefell v. Hodges decision, you would think the republic collapsed. With same-sex marriage now the law of the land, democracy is doomed, the Supreme Court is a council of dictators, and the Constitution is so much shredded pulp.
To be sure, the dissenters make many valid criticisms, but the only collapse was felt in the glass house where the minority incautiously hurled their stones. The overarching complaint — “five lawyers have closed the debate” over same-sex marriage, as Chief Justice John Roberts puts it in his opinion, and thereby stolen the choice from voters — is based on a pretense whose falseness is revealed in their own past opinions. The notion that the Supreme Court is a sober body of judgment beholden only to law and unmoved by ideology makes for heady rhetoric, but realism compels that we recognize it as a fantasy and not only because Justice Anthony Kennedy’s majority opinion in Obergefell is as thin on legal reasoning as the minority objects.
The immediate consequence — the legalization of marriage for same-sex couples in all 50 states — is a civil rights victory and a step toward the betterment of our people. But Kennedy’s argument, which is no elegant piece of law, reinforces misconceptions about nontraditional families. And with respect to marriage, he is as conservative as his dissenting colleagues. All that divides them is who gets to say “I do.”
Kennedy’s descriptions of marriage as “a keystone of the nation’s social order” and “essential to our most profound hopes and aspirations” are flatulent exercises of cultural atavism. At a time when divorce is routine and fewer people marry or wait longer to do so because marriage is necessary neither for love nor family, sex nor companionship, his claims on behalf a “two-person union unlike any other in its importance to the committed individuals” are more fitting of a $2.99 Hallmark card than of Supreme Court jurisprudence.
These “mummeries and straining-to-be-memorable passages,” as Justice Antonin Scalia calls them, are not the extent of Kennedy’s conservatism. He also affirms the devaluation of unmarried people, particularly those with children. “Without the recognition, stability and predictability marriage offers … children suffer the stigma of knowing their families are somehow lesser,” he writes. “They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.”
But this is not a brief on behalf of extending marriage rights and benefits to same-sex couples. It is, rather, an argument for providing benefits to all families, even those that lack a married couple of any sexual orientation. That means single-parent families, couples who choose for whatever reason not to marry, families comprising parents and adult children who live with them, other blood relatives who live together and every other conceivable arrangement of people whose economic and emotional ties make them families in the substantive, if not juridical, sense.
As Nancy Polikoff shows in her book “Beyond (Straight and Gay) Marriage,” the system of predicating rights and obligations on marriage is coercive and discriminatory. Not only do married people gain benefits to which they would not otherwise be entitled, but also unmarried people are needlessly barred from opportunities they would otherwise have. For instance, unmarried couples have been prevented from adopting children. Unmarried people have been deprived of housing subsidies and the right to live in their own home because of laws that construe only married people and their relations as families. Then there are disadvantages with respect to taxation, inheritance and worker’s compensation.
Both the majority opinion and the dissenters remain committed to marital privileges, even though these are primarily justified by the state’s interest in childbirth and child welfare, which are incidental to marriage. Marriage must be limited to a man and a woman, Justice Samuel Alito writes, because “for millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.” But procreation has never required coupling, in the sense of an emotional relationship, and modern reproductive technologies eliminate the need even for sex. Alito seems to have forgotten that procreation has always occurred outside of marriage as well as within it. The opinion and dissents repeatedly assert an exclusive equation between marriage and lasting bonds, between marriage and child welfare, overlooking the sources of socioeconomic ills befalling nontraditional families.
This sort of carelessness pervades Kennedy’s opinion, which hardly attempts a coherent line of legal reasoning. In response, Roberts accuses him of Lochnerism, harking back to an infamous 1905 case in which the Supreme Court overturned a New York law capping the number of hours bakers could work. In the years since, judges and lawyers have repudiated Lochner, which has become a byword for the imposition of policy preferences by judicial fiat.
The charge is not entirely unreasonable here, because Kennedy’s 14th Amendment argument is meager. But the dissent is brazenly hypocritical. Recall that the minority in Obergefell constituted four-fifths of the majority in District of Columbia v. Heller, the 2008 case that overturned the District of Columbia’s handgun ban. Along with McDonald v. Chicago (2010), Heller created a federal personal right to keep a handgun in the home, which is nowhere enumerated in the Constitution. Much as Kennedy, against tradition, found in the 14th Amendment’s protections of due process and equal protection an unwritten right for same-sex couples to marry, the majority in Heller, against tradition and precedent, found in the Second Amendment a private right to firearm ownership for the purpose of self-defense. In his Heller dissent, Justice John Paul Stevens marshaled historical evidence clearly demonstrating that the authors of the Second Amendment would have been aware of states’ interests in enshrining self-defense but chose not to do so. And the Heller decision likewise removed a policy choice from the democratic process. Many state constitutions guarantee a right to bear arms for self-defense. But not all do, indicating democratic disagreement on the matter, squelched by five lawyers.
If the arguments of the Obergefell minority appear capricious, that should hardly come as surprise. Caprice is acceptable to them as long as it is attested by tradition, the authority of which rings throughout the dissents. However, Roberts claims to agree with the majority on this key point: “Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification.” But what justification, pray tell, did the restriction of gay people’s liberty to marry rely on, apart from the fact that it had always been that way? Religious disapproval is not a legally acceptable justification in a secular state. The minority, seeking that “beyond,” recasts for its purposes Kennedy’s assertions about marriage’s significance and about universality, family stability and child welfare.
On Friday the court’s majority did its best to enhance liberty. It arguably did so by means of Lochnerism — or, one might say, Hellerism — which is nothing to celebrate. Nor, however, is that evidence of a crumbling nation. It is just another sign of what was already undeniable, thanks to Heller and other cases: The court, like other democratic institutions, imperfectly manifests the people’s will.