The Supreme Court’s decision extending marriage rights to gay and lesbian couples nationwide showcases Justice Anthony M. Kennedy simultaneously at his best and his worst. Kennedy’s 28-page opinion in Obergefell v. Hodges [June 26] is more lyrical than legal: heavy with florid celebration of the deeper meaning of marriage, somewhat light on legal citations.
Naturally, the dissenters in the 5-4 decision seized on the weak spots. In the main dissent, Chief Justice John G. Roberts Jr. complained of Kennedy’s “aggressive application” of substantive due process with “not a single sentence” to support the equal protection prong of the ruling. Justice Antonin Scalia acidly observed that Kennedy’s opinion was “couched in a style as pretentious as its content is egotistic.”
For his part, Justice Clarence Thomas skewered Kennedy’s obsessive focus on individual dignity: “The Constitution contains no ‘dignity’ clause,” he wrote. And, like the others, Justice Samuel A. Alito Jr. saw the ruling as nothing more than the personal preferences of their colleagues: “five lawyers,” as Roberts called them. The majority was claiming the power to confer the right to marriage, Alito concluded, “simply because they believe it is fundamental.”
Kennedy resisted the temptation to respond in kind, with no explicit reference to his dissenting colleagues. He focused instead on the positive. The right to marriage is fundamental, he explained, not just because the Supreme Court has said so in Loving v. Virginia (1967) and other cases but because it is. The right to marry the person of one’s choice, Kennedy reasons, “is inherent in the concept of individual autonomy.” Marriage, he says, allows the individuals together to find other freedoms: “expression, intimacy, spirituality.”
As the second of four premises, Kennedy says that marriage supports a “two-person union” unlike any other. It offers “the hope of companionship, understanding, and assurance” while also responding to “the universal fear that a lonely person might call out only to find no one there.” And, third and fourth, marriage provides safeguards to children and families and serves as “a keystone of social order.”
In the dozens of lower court decisions over the past two years, judges went to great lengths to shoot down the arguments that same-sex marriage opponents offered to defend the state bans: fewer marriages, more out-of-wedlock children, and so forth. Kennedy brushed those fears off with a single paragraph. The predictions of harmful outcomes for opposite-sex marriages were “counterintuitive,” he wrote. And opponents “had not shown a foundation” for their warnings.
On the opposite side, the dissenting justices equally failed to prove that the dire outcomes were likely. The issue brings to mind the clash during oral arguments between Scalia and Justice Elena Kagan over which side had the burden of proof in the cases. Scalia said the plaintiffs had to prove the bans unjustified, while Kagan countered that the states had to show justifications for excluding gays and lesbians. Kennedy’s opinion shows that Kagan won that point.
For his response, Roberts depicted Kennedy’s opinion as an exercise in anti-democratic judicial supremacy, a revival of the discredited Lochner era of striking down laws passed by the people’s representatives. Roberts’ response would ring more true if he had not helped put together the 5-4 majorities that plowed new ground by overriding legislative enactments that limited corporations’ spending in political campaigns and that banned possession of handguns.
In any event, marriage advocates long ago came up with the apt response to the political process argument. “We didn’t get to vote on your marriage,” they said, waggishly. “Why do you get to vote on ours?” Margaret Marshall, the former Massachusetts chief justice who wrote the state’s landmark marriage equality ruling in 2003, commented more seriously that Roberts seemed to have forgotten that Americans live in a constitutional, not a parliamentary, democracy.
Like the other three conservatives, Roberts warned of dire consequences from the ruling not so much for marriage, but for the body politic and, ironically, for same-sex couples and their advocates. “Closing debate tends to close minds,” he wrote. “People denied a voice are less likely to accept the ruling of a court.” Alito worried even more open-endedly. “[A]ll Americans . . . should worry about what the majority’s claim of power portends,” he wrote.
Social conservatives and some, but by no means all, of the Republican politicians who responded to the ruling echoed those sentiments. But with polls now showing majority support for same-sex marriage rights, President Obama seemed to capture popular sentiment more accurately by embracing the ruling unqualifiedly and lighting up the White House in rainbow colors in the evening.
By day’s end, same-sex couples apparently were marrying in every state but Mississippi. “It would misunderstand these men and women to say that they disrespect the idea of marriage,” Kennedy wrote. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”
To his partial credit, Roberts closed by urging same-sex couples to go ahead and celebrate the victory but not the Constitution. “It had nothing to do with it,” he said. Kennedy disagreed. Gays and lesbians, he said “ask for equal dignity in the eyes of the law. The Constitution grants them that right.”