Last week’s Supreme Court decision in Obergefell v. Hodges, extending the right of same-sex couples to marry to all 50 states, represents a joyous, much-deserved victory for gay Americans and for all of us who have long wished for our gay friends and loved ones the same rights that straight people enjoy. As public policy, the ruling is just, sensible and, if anything, overdue. But as an undeniable instance of judicial activism, it joins a long line of cases where the personal beliefs of the justices mattered as much or more than the legal principles at play. Much as we might applaud this particular outcome (and I do), the judicial shoe may next time be on the other foot.
In a case like this, where the outcome is as I think it should be, I’m glad to have a majority of the Court ignore the fact that the Constitution is utterly silent on the subject of marriage and that, throughout the history of the republic, marriage law has been, with very limited exceptions, the exclusive province of the various States. I am happy to have the Court forget that the Windsor ruling of two summers ago, which struck down the federal Defense of Marriage Act, did so in part on the ground that state marriage law (allowing same-sex marriage in that case) should be respected, and that DOMA “depart[ed] from this history and tradition of reliance on state law to define marriage.” Come to think of it, I would like a majority of the Court to completely ignore the Second Amendment too, as I regard an unrestricted right to bear arms as an antiquated and dangerous notion in the 21st century.
But if I like this ruling today, I’d better be prepared for the day when a majority led by, say, Justice Scalia, decides that the “right to privacy,” on which Roe v. Wade is based, was just a dream we all had (as it, too, is nowhere mentioned in the Constitution), or that fictional legal entities such as corporations have the right of free speech (oops, that one already happened).
No matter how one regards the fact of homosexuality or the nature of marriage, even the most hard-nosed, Bible-thumping Federalist could concede that the spectacle of a couple legally married in one state but finding their union discredited by another was, in today’s mobile society, an untenable absurdity that demanded correction. Last week’s ruling, of course, went much further than that, concluding that the right to marry is one of the rights, protected by the Fourteenth Amendment, that are “so fundamental that the State must accord them its respect,” and that a State’s determination to legally recognize only marriages between a man and a woman violated that right.
This represents, in the view of an ever-increasing number of Americans, good policy; it represents equality, pure and sweet. But good policy does not always make good jurisprudence. The Court is in the unique position to impose the personal views of its members on the entire country, and that is precisely what the Constitution and the traditions of the Court forbid. That prohibition is the essence of judicial restraint.
The opinions of the four dissenting justices (Scalia, Thomas, Alito, and Chief Justice Roberts) all seize on this point: that five justices of the Supreme Court, with what the dissenters see as breathtaking hubris, presume to remove from the States and their citizens the right to determine how they wish to define marriage within their borders. Scalia is predictably scathing, denouncing his colleagues’ majority opinion as “pretentious” and “incoherent,” but also driving home with some humor the point that the Court is not – and should not act as – a representative legislature:
“….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.”
Chief Justice Roberts makes the point more succinctly:
“….this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”
Of course, this is a bit glib; the Court routinely says what the law should or should not be, as when, in D.C. v. Heller, it said that the law should not require guns to be under lock and key, or when, in Citizens United, it said that corporations should be able to spend whatever they want on political campaigns, Congressional legislation be damned. I don’t like those rulings, but they sort of come with the judicial territory if I am to like the outcome of Obergefell (and I do).
Justice Roberts offered perhaps the slyest argument against the majority ruling:
“However heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. They lose this just when the wind was at their backs.”
The “opportunity” to have to persuade others of our rights is one that most of us would gladly forego, thanks very much. Back in the Sixties, opponents of integration used to say that “you can’t legislate morality.” But you can; and immorality as well. We need look no further than Nazi Germany or the segregationist South for examples of the tyranny of the majority, where bad policy becomes law because the people will it, or just don’t care.
Our ultimate – in some cases, only — protection against misguided majorities is the document that embodies our principles – the Constitution – and the body entrusted with interpreting it: the Supreme Court.
The Court could have taken a middle road: require the States, on the basis of the Full Faith and Credit clause of the Constitution, to recognize out-of-state gay marriages, but leave standing (at least for now) laws and state constitutions that ban the formation of gay marriages within their borders. Even that outcome would have produced absurd results, such as where Gay Couple A, legally married in California, moves to Ohio and settles down next to Gay Couple B, who cannot legally marry in-state nor, therefore, file joint state tax returns, while Couple A, legally married elsewhere, could do so. Marriage tourism would certainly have accelerated in such a patchwork legal landscape. But such a middle course might have had firmer Constitutional and precedential underpinnings than the rather convoluted (if poetic) interpretation of the Fourteenth Amendment that the majority relied upon, would have eventually required remedial legislative response, and would have made the liberal wing of the Court an example of judicial restraint to their conservative brethren.
The scorecard of judicial activism shows that when judges make law, everyone’s ox eventually gets gored: Brown v. Board of Education on one hand, Bush v. Gore on the other. Sometimes you get a Roe v. Wade or an Obergefell, sometimes a Citizens United or a Heller. You win some, you lose some, in a game of Constitutional roulette largely determined by the philosophies of the sitting Justices at a particular point in time. This, and not any legislative agenda or foreign policy viewpoint, is why I will vote Democratic in the next Presidential election: I’ve become a Constitutional cynic, and the next President will likely nominate two or three new Supreme Court justices who will sit on the Court for decades, deciding cases that will shape our nation to a far greater degree than our dysfunctional Congress.
Would it have been better had the right of gay persons to marry been conferred by the will of the people at the state level, rather than by five jurists in Washington? Without question. Would it have taken too long? It had already taken too long, and might never have been achieved. Justice and equality were victors last week, as were we all, even those of us who can’t yet abide the result.
But the fig leaf of Constitutional reasoning is barely visible in too many opinions of the current Court, and the naked ideology beneath all too apparent. We run the risk of becoming a nation of Constitutional cynics, content to let a panel of wise persons decide the gravest issues we face because we lack the collegiality, humanity or statecraft to address them in our legislatures.
We will be wise to remember: when the Supreme Court legislates, you win some and you lose some, and all too often, in Justice Roberts’ words, “the Constitution ha[s] nothing to do with it.”