I was delighted to see the Supreme Court of the United States catch up with the Supreme Judicial Court of Massachusetts, and hold last week in Obergefell v. Hodges that same-sex couples must be allowed to marry on the same terms as opposite-sex couples. That result seems to me a perfectly straightforward application of well-established legal principles, in particular, the Fourteenth Amendment’s guarantee of equal protection under the law. Laws saying that same-sex couples can’t get married are obviously “discriminatory” in the literal sense of that word – they discriminate between people by denying a particular group of people benefits that other people get. The state therefore has to justify the discrimination under the Equal Protection Clause, and in this case, they can’t. And that’s pretty much it. (Legal wonks: yes, there are complications relating to levels of scrutiny and the like – see the flip for more – but that’s the basic idea.)
Unfortunately, that’s not the approach that Justice Kennedy took in writing the Court’s majority opinion. Instead, Kennedy delivered a soaring paean to the institution of marriage (sorry unmarried folks, you’re missing out on “our most profound hopes and aspirations”), and then went on for pages about autonomy, personhood, destiny, and dignity – all interesting and worthy topics, to be sure, but topics that are not well defined in legal terms. He concluded as a result that the Court’s doctrine of “substantive due process,” specifically its “fundamental rights” jurisprudence that preserves rights deemed “fundamental” (by the Court) from government interference, gave same-sex couples the right to marry.
Substantive due process is risky territory (in addition to being something of an oxymoron). Most notoriously, in the early 20th century, the Court repeatedly used substantive due process to invalidate a variety of worker protection and other progressive state laws in the so-called Lochner era, on the ground that they interfered with the supposedly constitutionally-protected liberty of workers to enter into any kind of contractual arrangement they pleased, however exploitative it may have been. (Lochner v. New York itself invalidated a New York law limiting the number of hours that bakers could work in a single day to 10.) Over the years, substantive due process has been criticized as simply an excuse for judges to enact their policy preferences into law, and there is a kernel of truth there. For a similarly skeptical take on Kennedy’s opinion from another supporter of equal marriage, you can read Brian Beutler at TNR.
None of which is to say that I disagree with what Kennedy’s opinion said about the importance of marriage. I actually agree with a lot of it. But he could have gotten most of that in had he used the better-established, less-prone-to-judicial-abuse doctrine of equal protection. An equal protection analysis would have required the Court to examine the stated justifications for the marriage bans, and to assess whether they are good enough to justify discriminating against LGBT people. The answer, of course, is that they aren’t, and much of Kennedy’s rather free-floating commentary about marriage could have been put to better use in supporting that conclusion.
But is there really anything wrong with Kennedy’s opinion? Maybe. One possible problem with giving constitutional protection to, say, “dignity,” which is more or less what Kennedy did, is that it’s not hard to imagine “dignity” cropping up in other contexts where the result might be far less pleasing to those of us who liked the result in this case. For instance, to return to everyone’s favorite example, is it so hard to imagine a Christian baker claiming that having to make a wedding cake for a gay couple infringes not only on her free exercise of religion, but also on her dignity? Is there a legal basis for distinguishing a constitutionally-protected dignity interest from a non-protected one, beyond garnering the vote of a majority of judges on whichever court is hearing the case? Will we now face a barrage of dignity-based lawsuits, with the courts having to distinguish among the various types and manifestations of “dignity” that come before them? I’m not sure that’s a road down which we want to travel very far.
In other words, I think that the Obama administration’s suggested approach was right. In arguing that the marriage bans should be struck down, the administration relied solely on equal protection, and did so in exceptionally convincing fashion (to me, at least). You can read the whole brief for the United States here (PDF). I’ve pasted in the brief’s summary of argument on the flip. (Disclosure: Stuart Delery, one of that brief’s principal authors, is a friend and former colleague.)