However happy the result for some of us, the Supreme Court’s 5-4 discovery in Obergefell v. Hodges of a fundamental Constitutional right to same-sex marriage raises more questions than it answers, not all of which I’ll try to answer here.
First, exactly where did Justice Kennedy and his colleagues on the left discover such a right? Their lofty and aspirational opinion is long on rhetoric but short on details and legal reasoning. It suggests that the right lies somewhere at the intersection of the due process and equal protection clauses of the Fourteen Amendment, adopted in 1868. But that would mean that the states, which regulate marriage (mostly through county clerks) have been violating the Constitution for 147 years and nobody noticed until now. That doesn’t sound very plausible to me.
Besides, the Fifth Amendment, ratified in 1791, also contains a due process clause, in pretty much the same words as that of the Fourteenth. That would mean that the federal government has also been turning a blind eye to the states’ violation of a fundamental Constitutional right for 224 years, or almost as long as the Constitution has been around. Inasmuch as marriage equality was not one of the grounds for declaring the War of Independence or fighting the War Between the States, that doesn’t sound very likely either.
So the second question is, why didn’t anyone on the Supreme Court discover this fundamental constitutional right sooner? As Justice Scalia’s dissent points out, we’ve had some pretty smart Supreme Court justices in the past. How did this escape the notice of, for example, Oliver Wendell Holmes?
Third, if same-sex marriage is a not just a right but a fundamental right, then why did none of Justice Kennedy’s colleagues help him out by writing a concurring opinion pointing out just where to find this right? Four Justices explained pretty clearly why no such right can be found in the history or text of the Constitution or in any of the Supreme Court’s own precedents, yet nobody was there to help poor Justice Kennedy. They just signed on to his opinion. A coherent explanation might have been helpful for lower courts that try to apply the Court’s decision in the future in the face of the assertion of say, fundamental religious liberties.
True, the Ninth Amendment says that the “enumeration … of certain rights shall not be construed to deny or disparage others retained by the people,” but those rights had to come from somewhere. In the vision of the Founders, such rights are “unalienable,” and the second paragraph of the Declaration of Independence proudly proclaims that they come from a “Creator.” This necessarily implies a higher source than government in general and the Supreme Court in particular. Thomas Jefferson, who drafted the Declaration, was a Deist who reasoned his way to the existence of God, but Americans throughout the history of this nation have taken “God” to mean in particular the God of Abraham, who handed down the Ten Commandments that appear in part on the frieze above the Supreme Court to this day.
Yet Abraham and his descendants, both literal and spiritual, seem to have understood marriage to mean two people of different genders, specifically male and female. If they hadn’t, in fact, then likely no one would be alive today to have this debate, because artificial means of procreation and surrogate motherhood hadn’t yet been discovered.
Fourth, just what is the full scope of this newly-discovered and apparently long-hidden fundamental right to marry? We know from Justice Kennedy’s opinion that marriage can include two members of the same sex or gender identification, and we presume by reason and logic that it still includes two members of what we used to call “the opposite sex” for practical reasons like the continuation of humankind through procreation by natural means. But gender, we are elsewhere told, is something of a fluid concept, if not a social construct. Does the right to marry also include transgender individuals like Chelsea Manning and Caitlyn Jenner? The Supreme Court has already held that states can’t prohibit prisoners from marrying, Turner v. Safley, 482 U.S. 78, 95 (1987), so Chelsea’s current incarceration doesn’t stand in the way, but may or must she choose a man, a woman, or another transgender person? We suppose it’s entirely up to her, at least as far as the High Court is concerned.
And suppose that Caitlyn Jenner wanted to remarry, for example, all of his former wives simultaneously (or would they now be husbands)? May a state prohibit—or conversely, lawfully permit—it? As Chief Justice Roberts noted in his Obergefell dissent, there’s more historical, cultural, and societal precedent worldwide for polyamorous marriages than for same-sex/gender marriages. So if denying a fundamental constitutional right impinges on one’s personal dignity and sense of self, then on what grounds may a state interfere with a consensual polyamorous marriage?
Fifth, who is now to define the new scope of this undefined but fundamental right? It can no longer be the states, because the Kennedy majority found that states may not deny the government-provided accoutrements of marriage based on any of the historical, cultural, legal, or moral policy grounds raised in defense of traditional heterosexual marriage to date. Because county clerks and local governments are subdivisions or actors of the state, that leaves only two possibilities: the people themselves or the federal government.
But if it’s the people, then it can’t be the people acting through their state and local governments, because Justice Kennedy’s “decree” (in the words of Justice Scalia) has taken that power away. So the definition of marriage must therefore be up to individuals themselves, in whatever arrangement they may find personally fulfilling or financially advantageous. So may a man now marry his sister if he wants her to inherit his government pension? How about a spinster who wishes to leave her estate (and her pension) to her pets? The Kennedy majority doesn’t say.
If letting people decide for themselves whom they may marry without interference from the state is too radical, then that leaves only the federal government to decide the question. But all federal legislative power is vested in the Congress, and even if you look real hard at Article I, Section 8, you won’t find either the definition or the regulation of marriage within its enumerated powers. That leaves just the Executive Branch and the Courts.
The President takes an oath to see that the laws are faithfully executed, but he has no power to make the laws; if he did then he would be the king before the Magna Carta, which was signed just over eight hundred years ago. So that leaves only federal courts to decide any unanswered questions about marriage.
Such power of federal judges lies nowhere in the history, the language, or the meaning of the Constitution or the structure of the American government. But in today’s feel-good one-size-fits-all world in which federal judges just generally intuit what they think is good for everyone and the public then shames and reviles anyone who disagrees, letting unelected judges make the rules for marriage would make a weird kind of sense.
Or we could have continued to discuss, to debate, and to decide the important question of redefining forever an institution that has served civil society mostly well for millennia for ourselves and our posterity in a dignified and civilized way, especially, as Justice Roberts eloquently put it in dissent, with the wind at our backs. But that, like democracy, would have been too messy, we suppose.
The tragedy of it all, as Justice Roberts also observed (Obergefell dissent at 27), is that we “proponents of same-sex marriage … have lost, and lost forever … the opportunity to win the true acceptance that comes from persuading [our] fellow citizens of the justice of [our] cause.”
And that’s a problem no court can now solve.