Two Cheers for Justice Kennedy

By all means, celebrate. But, looking to future gay-rights cases, Justice Kennedy gave us more rhetoric than precedent.


Friday, the Supreme Court ended the decades-long legal debate on marriage equality, making same-sex marriage legal for the entire nation in Obergefell v Hodges. Across the country, supporters of gay rights were jubilant as they read to each other delicious paragraphs out of Justice Kennedy’s majority opinion. But I have a complaint: Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us.

Not in other marriage cases — that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

The DOMA hangover. As regular Sift readers know, I have mixed feelings about Justice Kennedy, particularly on the subject of gay rights. He tends to rule the way I want, and he’s often the swing vote that puts my position over the top. But being the swing vote, he usually ends up writing the majority opinion, and he writes it badly. That’s what happened when the Court threw out the Defense of Marriage Act (DOMA) two years ago, which I covered (along with Chief Justice Roberts’ hamstringing of the Voting Rights Act) in an article I demurely called “This Court Sucks“. And it happened again Friday.

The reason Obergefell came to the Court in the first place was that lower courts could not follow Kennedy’s mushy reasoning in the DOMA case. The Supreme Court is supposed to do more than just decide the current case, it’s supposed provide interpretive frameworks for lower courts to apply, so that future cases can be decided without involving the Supremes again. But when Judge Kean was throwing out Oklahoma’s ban on same-sex marriage, for example, he wrote that he had “gleaned” — not quoted, gleaned — two principles from Kennedy’s DOMA opinion. Other courts gleaned other principles and disagreed, so the highest court had to sort it out.

This time, Kennedy has made marriage equality the law of the land, but he’s done it with another piece of mushy reasoning that is a poor climax to the distinguished series of lower-court decisions supporting same-sex marriage, going all the way back to the 2003 Goodridge decision in Massachusetts. Instead of following the compelling logic laid out by one lower court after another, Kennedy’s opinion looks like exactly what critics of marriage equality say it is: a judge redefining marriage according to his own values. His ruling is full of beautiful tributes to the dignity of same-sex couples, but short on the kind of step-by-step legal thinking you can find in the lower-court rulings, which I summarized last month.

Due process isn’t enough. Every pro-marriage-equality judge I know of, other than Kennedy, has centered the argument on the 14th Amendment‘s guarantee of “the equal protection of the laws”. As I summarized:

In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.

That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination.

… So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

Instead, Kennedy focuses on the 14th Amendment’s due-process clause, and finds a fundamental right to marry in the word liberty. His rhetoric is inspiring if you already agree with him, but if you don’t, his reasoning isn’t compelling. The dissents by Roberts, Thomas, Scalia, and Alito eviscerate his argument, and rightly so.

Kennedy’s biggest problem is that the Constitution doesn’t require governments, either federal or state, to recognize marriage at all. (If Oregon wanted to become “the free love state” and stop performing marriages entirely, that would be up to Oregonians.) Liberty traditionally means being left alone by the government, not that the government must help you in some way. So Roberts makes an argument that appears in some form in all the dissents:

Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.

The question Kennedy should have raised is: Once the State has defined the “positive entitlement” of marriage for some people, what’s its justification for denying those benefits to others? But that’s an equal-protection issue, not a liberty issue.

In short: the ruling came out the right way, but the people who still want to hold out against marriage equality feel vindicated in their view that the Court has usurped the power of the legislative branch by “redefining marriage”. It didn’t have to be like this. Why, oh why, couldn’t Justice Ginsburg have written this ruling?

Why it’s important. The lower courts nearly all used the equal-protection framework: Define a level of scrutiny appropriate to laws that discriminate against gays, and then examine the government’s reasons for discriminating under that level of scrutiny. One of the issues to decide, if you go that way, is whether gays and lesbians are a class that has traditionally faced discrimination, and so how much benefit of the doubt a legislature or electorate should get as to its motives.

Racial discrimination, for example, faces the highest level of scrutiny. As a matter of judicial precedent, laws that discriminate against traditionally disadvantaged racial groups are inherently suspect. Similarly, laws that discriminate against women are inherently suspect. It’s possible that some particular race- or gender-discriminating law can be justified, but a court will not give the government any benefit of the doubt.

The traditional discrimination against gays and lesbians certainly would justify giving laws against them some heightened level of scrutiny, but the Supreme Court has never done so. Kennedy doesn’t do so either.

Pro-marriage-equality judges who don’t invoke heightened scrutiny are forced to give the legislative branch the benefit of the doubt. And so they end up having to argue that same-sex marriage bans are completely irrational. That argument has been made, and was sitting there for Kennedy to endorse. He didn’t.

Going either way would have established a precedent for fighting other anti-gay discrimination: Either anti-gay discrimination would face heightened scrutiny in the future, or there would be a precedent for saying that certain kinds of anti-gay discrimination are irrational.

Instead, Justice Kennedy gave us just this result, justified by a lot of effusive rhetoric that has no further legal consequences.

The “threat to American democracy”. All four dissents lamented a judicial usurpation of powers properly belonging to the democratic branches — which is in fact a fair criticism of the argument Kennedy made. The place for flowery rhetoric is in the legislature or on the campaign trail. But it wouldn’t have been a fair criticism of the equal-protection argument Kennedy avoided.

Dahlia Lithwick raised the right question:

And all I could keep thinking was, “Where was all this five unelected judges chatter when you all handed down Citizens United? Or Shelby County? Why does this rhetoric about five elitist out-of-touch patrician fortune-cookie writers never stick when you’re in the five?”

The most-quoted Roberts line was:

Indeed, 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.

If you’re a straight person very distant from the gay community, this might sound convincing. But if you imagine yourself in the place of a same-sex couple, it isn’t convincing at all. Would you rather have widespread social approval ten years from now, or the equal protection of the laws today? The answer is pretty obvious.

The comparison to interracial marriage is apt. XKCD draws the chart:

Our fellow citizens are being persuaded of the justice of marriage equality — not, for the most part, by referendum campaigns, but by living in society with same-sex couples. That process will continue apace.

In these the-sky-will-fall-if-we-allow-this situations, most people have to see something in action before they realize the panic-mongers are conning them. As I predicted back in 2003:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Today, no one cares how interracial couples got the right to marry. Most young people have trouble believing it was ever an issue. (Have you ever tried to explain to a teen-ager why his friend’s parents’ marriage would have been illegal 50 years ago? I have.) So it will be for same-sex marriage.

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Comments

  • Gina  On June 29, 2015 at 9:15 am

    Remember the 1970’s sitcom The Jeffersons? I remember how “weird” it was that there was an inter-racial couple depicted on that show. Even as a child I understood that it was meant to convey a normalcy, a softening of attitudes toward inter-racial marriage that we in the south had not achieved in reality. Now, even in the south it is no big deal at all. There is an inter-racial couple in every family, every neighborhood.

    I also remember noticing, even at a young age, the strange construction of the relationship on the Jeffersons. It had to be a black woman/white man combination. No way would a black man have been accepted with a white woman back then. And the couple had to be ridiculous. They could not be perceived as a threat to anybody, just a couple of black-white clowns being silly. There had to be zero physical chemistry and not even the barest hint of sexuality between them.

    And that seems to be the thing in puritan America. People can’t think about gay marriage without thinking about sex, even if they have no problem thinking about an elderly couple getting married without even once imagining them in bed together.

  • Madalyn Johnson (@Cressida74)  On June 29, 2015 at 12:09 pm

    “Racial discrimination, for example, faces the highest level of scrutiny. As a matter of judicial precedent, laws that discriminate against traditionally disadvantaged racial groups are inherently suspect. Similarly, laws that discriminate against women are inherently suspect.”

    To be clear, gender discrimination falls under intermediate scrutiny, not strict scrutiny as race does.

  • Laura VWA  On June 29, 2015 at 1:34 pm

    Do you have any ideas why Justice Kennedy has written in that way?

    • weeklysift  On June 29, 2015 at 3:24 pm

      This is a wild guess: I don’t think he wants to define any kind of protected status for gays, because that might interfere with corporate rights when it came to employment cases.

  • weeklysift  On June 29, 2015 at 3:42 pm

    Writing at almost exactly the same time (I think I posted an hour sooner), Salon’s Andrew Koppelman said some very similar things: “The decision is great news. As a matter of law, it reaches the correct result. But it’s unfortunate that the opinion that does this great thing is so painful to read. It’s like getting a brand new car with a huge stupid piece of graffiti scratched onto it. It’s ugly, and that’s a shame, but it will get you where you need to go.” http://www.salon.com/2015/06/29/the_supreme_court_made_the_right_call_on_marriage_equality_%E2%80%94_but_they_did_it_the_wrong_way/

  • coastcontact  On June 29, 2015 at 9:24 pm

    Amendment XIV

    Section 1.

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    That section should of the 14th amendment end this discussion. That was your point and I agree. “Once the State has defined the “positive entitlement” of marriage for some people, what’s its justification for denying those benefits to others? But that’s an equal-protection issue, not a liberty issue.”

    Foolishly some GOP presidential candidates are using wording to defend marriage between a man and a woman only sounds like the defenses against intermarriage between races.

Trackbacks

  • By Crumbling Shackles | The Weekly Sift on June 29, 2015 at 11:38 am

    […] week’s featured posts are “Two Cheers for Justice Kennedy” and “Slurs: Who Can Say Them, When, and […]

  • By So What About Polygamy Anyway? | The Weekly Sift on July 20, 2015 at 9:09 am

    […] opinion Justice Kennedy wrote, which really is as bad as the dissents claim. (I covered that when it came out.) It’s not at all typical of marriage-equality opinions, and it contains little in the way of […]

  • […] When the Obergefell decision arrived in June and same-sex marriage became legal nationwide, I was pleased by the result but (once again) disappointed in Justice Kennedy’s reasoning. […]

  • […] But there’s a still a problem: In all those gay-rights decisions he wrote, Justice Kennedy dodged the question of whether laws concerning gays and lesbians require some form of heightened scrutiny, like laws affecting race and gender do. Laws that affect women or racial minorities may seem to be about something entirely neutral, but because governments have a long history of race and gender bias, courts can’t take that at face value; they have to consider the broader situation in the way Stern describes. Lower courts have sometimes decided that heightened scrutiny was called for — the Colorado Supreme Court did in Romer, for example — but Justice Kennedy has a frustrating way of reaching decisions without resolving the underlying legal issues (something I have complained about repeatedly). […]

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