an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
expected, the Supreme Court decided that same-sex couples have a right to marry
by a 5-4 margin, with Anthony Kennedy writing a majority opinion full of vague talk about dignity.His opinion relied on his strange idea that
marriage is fundamentally about conferring dignity on people.There is something to this.Everyone understands that dignity was at
stake in this decision.(The headline on the front page of the New York
Times the next day was simply “Equal Dignity,” quoting those words from the
opinion.)But he delivers that news in a
I try to ungarble it in a new column in Salon, here.
The constitutional question in Arizona State Legislature v. Arizona
Independent Redistricting Commission (AIRC) is whether the State of Arizona can
transfer the power to redistrict to an independent commission, which was
created by a constitutional amendment passed through the initiative
objected to having this power taken away from it. It argued that this
Elections Clause of Art. I, § 4, cl. 1, which provides that “The Times,
and Manner of holding Elections for Senators and Representatives, shall
prescribed in each State by the Legislature thereof; but the Congress
any time by Law make or alter such Regulations.” The Court ruled 5-4,
in an opinion by Justice Ginsburg, that the Elections Clause allowed
Arizona to use an independent commission for creating and revising
Congressional districts. (No one on the Court denied that Arizona could
use an independent commission to create state legislative districts).
AIRC raises a recurrent problem in constitutional interpretation. How do we
interpret words in the text for situations that the framers and ratifiers
didn't expect or didn’t even imagine would occur?The most obvious examples involve new
technologies. Thus, in Kyllo v. United States, 533 U.S. 27 (2001), the Court
held that using a thermal imaging device constituted a "search," even
though government agents never breached the wall of the defendant's house. In
Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1 (1877), the court held
that Congress could regulate telegraph communication as part of its powers to
regulate foreign and interstate "commerce."In each case the Court looked to what it
regarded as the purposes behind the clause
to apply it to unforeseen situations.
AIRC concerns a political innovation rather than a technological
innovation—the development of the initiative and referendum in the late 19th
and early 20th centuries to wrest some law-making power away from legislatures
or to check legislative misbehavior. These innovations responded to the
perceived corruption of representative democracy during the Gilded Age. Because
legislatures were corrupt or easily bought off by powerful interests, reformers
sought to return important questions to the public.
The framers did not expect
that states would implement direct democracy. Many of them knew about similar institutions
in ancient democracies, and they distrusted direct rule by the public. They
were, however, worried about the problem of representatives entrenching
themselves so that they could not be dislodged, even when they no longer
commanded majority support.This is
reflected not only in the Elections Clause, but also in Article IV's general
guarantee of republican government in the states.
The majority argues that “the
Legislature” includes the people of Arizona, who have the power to pass laws, and
who have delegated their legislative power to redistrict to the AIRC. It argues
that “the Legislature” should be understood functionally, as we understand
words like “search” in the Fourth Amendment. The dissent argues that the people
of Arizona are not part of “the Legislature.” A legislature must be a
representative body, and by definition the people of Arizona are not
representatives. (That conclusion is not completely obvious: the voters of Arizona actually do virtually represent
everyone in the population who cannot vote, like children, or who do not vote--in some years, a very substantial proportion of the population.)
But there also is a
third possibility: that Arizona has more than one legislative body.
I want to make a small observation about the Court's opinion on same-sex marriage. In West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson made this famous observation about the Bill of Rights:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."
Here is how the same quote is reproduced in Obergefell v. Hodges:
"The idea of the Constitution 'was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.'
I think that the latter is not an accurate paraphrase or statement. The idea of the Constitution was at least as much about enabling democratic politics and reserving certain subjects to state politics. The idea of the Bill of Rights, by contrast, is much more about judicial review and minority rights.
As religious liberty objections to marriage continue to mount, what does Obergefell v. Hodges have to say?
Opponents have long invoked religious liberty as an argument against same-sex marriage. As an amicus brief submitted in Obergefell by religious groups, including the National Association of Evangelicals, the Mormon Church, and the Southern Baptist Convention, argued: “Recognizing a new right to same-sex marriage would harm religious liberty.” The Court clearly rejected this religious liberty argument against same-sex marriage.
But what about claims for religious exemptions for those who object that doing business with persons in a same-sex marriage—for example, providing the couple wedding flowers or employment benefits—might make the objector complicit in the assertedly sinful conduct of another? Complicity-based conscience claims of this kind have dominated debates over state RFRAs in Arizona and Indiana. The grounds on which Justice Kennedy rejected the religious liberty argument against same-sex marriage suggest important limits on these claims to religious exemptions.
Writing for the Court, Justice Kennedy was careful not to “disparage” those “who deem same-sex marriage to be wrong . . . based on decent and honorable religious . . . premises”; indeed, Windsor’s animus arguments, which inspired protests from those with traditional religious beliefs about marriage, are nowhere to be found in Obergefell. Yet Justice Kennedy warned that “the necessary consequence” of state sanction of religious opposition to same-sex marriage “is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” He is concerned about not only the material but also the dignitary harms inflicted on same-sex couples when the state sanctions religious opposition to same-sex marriage.
This reasoning speaks volumes about the emerging conflicts over religious exemptions and LGBT equality. Religious liberty cases regularly recognize third-party harm as a limitation on accommodation. In Burwell v. Hobby Lobby Stores, the Court’s 2014 decision granting a religious accommodation to employers that objected to providing employees with health insurance covering contraception, Justice Kennedy concurred, warning that religious accommodations must not impose significant harms on other citizens. In fact, his concern about third-party harm guided the five-justice majority to a decision that recognized the religious claims of the employers on the assumption of “zero” effect on female employees. As we have shown, the Court decided Hobby Lobby on narrow tailoring grounds that illuminate the federal RFRA’s application more generally.
Chief Justice Roberts also read Justice Kennedy’s discussion of religious liberty objections to marriage as having import beyond the questions at issue in Obergefell. In dissent, the Chief Justice found the majority’s “assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same- sex marriage . . . hard to square with the very next sentence, in which the majority explains that ‘the necessary consequence’ of laws codifying the traditional definition of marriage is to ‘demea[n] or stigmatiz[e]’ same-sex couples.” Worrying that the Court’s decision “creates serious questions about religious liberty,” the Chief Justice implicitly recognized how Justice Kennedy’s concern with third-party harm, including dignitary harm, counsels against broad exemptions.
We argue that concern about third-party harm should guide decisions about whether and how to accommodate religious liberty claims in our American Prospect essay, Conscience and the Culture Wars, and our recent article, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, in the Yale Law Journal. There we devote special attention to the kinds of religious exemption claims arising in the contexts of abortion, contraception, and same-sex marriage. Many claimants assert what we call “complicity-based conscience claims”—objecting to being made complicit in the assertedly sinful conduct of their fellow citizens. So, for instance, business owners refuse to provide goods and services to same-sex couples because they object to being made complicit in relationships they deem sinful. Accommodating claims of this kind can inflict harms on third parties. These include material harms—obstructing access to goods and services—and dignitary harms—stigmatizing other citizens as sinners. Justice Kennedy’s approach in Obergefell suggests that these harms matter in deciding whether and how to accommodate claims for religious exemptions.
JB: You are one of the foremost experts on American election law. How did you get interested in the constitutional problems of emerging democracies?
Sam Issacharoff: Two events in the U.S. had the paradoxical effect of directing my attention abroad. The precipitating events were the debates over the trade-offs between liberty and security in the wake of 9/11 and the role of the Court in resolving the contested presidential election of 2000. Each struck me as a familiar point of crisis in democracies: a threat to the political openness of democratic politics, and a succession crisis and the risk of a vacuum of leadership. I realized that I did not have a good command of how these matters were dealt with in countries that faced real threats to security more regularly. And, I watched with some amazement as the Mexican Supreme Electoral Tribunal handled the 2006 presidential election contest (their equivalent of Bush v. Gore) with relative ease. The more I looked at newly minted democracies, as in Mexico and South Africa, the more I was struck by the generalizable pattern of courts serving as stabilizing institutions during periods of what I would term democratic fragility.
JB: A key claim of the book is that courts can play an important role in keeping emerging democracies from backsliding into authoritarianism and dictatorship. Why are courts able to do this?
Sam Issacharoff:The paradoxical claim of the book is that courts can help stabilize democracy at the moments when political power is most contested. Since courts notoriously lack the power of the purse or the sword, the paradox is why there should be any expectation that they can play this role. In many instances when courts have tried to intercede, they have failed catastrophically, with Peru and Russia as ready examples. But there are too many counterexamples of courts reining in political power and that demands some explanation.
The main one offered in the book is that courts help lower the stakes of what is up for grabs in any election. The problem of the post-colonial periods of state consolidation of the twentieth century, and particularly the third wave of democracy after the fall of the Soviet Union, is that most of the new countries were democracies without a well-established demos, to borrow from Joseph Weiler. An election in such circumstances risks becoming a one-shot referendum on who will hold state power to do in the rivals. An earlier effort to lower the risk was based on consociationalism, formalized power sharing. The new efforts at democracy try to lower the downside risk by imposing a strong set of constitutional constraints on what governments can do. Constitutionalism is then entrusted to courts that have strong powers of judicial review and offer an institutional ally to those that stand to lose in the electoral process. This is a strategy I call “democratic hedging.”
JB: Are courts able to help calm tensions based on ethnic or religious differences within a fledgling democracy? Or does their major contribution lie elsewhere?
Sam Issacharoff:I do not think that courts have a proven track record of lowering historic antagonisms based on race, religion, or ethnicity – at least not as such, and not in the short time frame of nascent democracies. They are able to do two things, however. First, they can improve the prospects of a second election in which a victorious party can be judged anew based on its results, and may be dislodged. This is critically important because it gives subgroups within even sectional parties an incentive to conform their platform to what the courts will permit to be permitted in the electoral arena. Turkey and India are leading examples of this phenomenon. Second, they can protect disfavored groups from exclusion through lustration, linguistic requirements, and the sheer power of an over-weaning executive, as exemplified by the Colombian Constitutional Court’s confrontation with President Uribe in 2010.
JB: What about situations in which a revolutionary party takes over and establishes a democracy for the first time? Is it realistic to think that courts can stand up to the leaders of these movements?
Sam Issacharoff:The consolidation of one-partyism, as I term it in the book, in the aftermath of an overthrow of autocracy is a genuine risk. One-party regimes begin to exhibit pathological cronyism, corruption and clientelism, each of which further diminishes the prospects for successful democratic governance. Further, courts have had the most success in shoring up democracy when there is a contest for power and the court becomes an ally of an out-group in resisting consolidation of power. And yet there are counterexamples where courts have successfully resisted, at least for a time, the pull of a dominant party. The best example is South Africa, but that was contingent on the political will of Nelson Mandela and the first generation of ANC leadership. But the Indian court resisted the Congress Party’s efforts to exploit emergency rule, and the Mexican courts were instrumental in breaking more than a half century of PRI hegemony. At the same time, most of the fledgling democracies do not have as clear a party with a mandate as did South Africa, India or Mexico.
JB: What keeps political leaders from just replacing judges with their political allies so that they can do what they want? Do courts need extra sources of support--for example from the army, business, or civil society--in order to keep democracy working?
Sam Issacharoff:The simplest answer is that in the long run, courts will succumb to consolidated political power. The issue is what institutional buffers will emerge in the period of the consolidation of power. Some of the institutional buffers are created internally in efforts to guarantee judicial independence in the appointment process. But the critical sources of support are likely to come from civil society, other domestic institutions, including the military, and from international sources of authority, both judicial and economic. The prospect of retaliating against courts too overtly may have serious repercussions in terms on international economic relations. It is only a quarter-century since most of these new democracies were created. They largely failed in central Asia, but courts have maintained strong independence in Poland and the Czech Republic. The simple answer to the question is that courts have proven highly vulnerable, as in Hungary, but have still shown surprising resilience.
JB: Critics of judicial review have long argued that it is inconsistent with democracy, and actually undermines it in the long run. How does your argument engage with those critics?
Sam Issacharoff:We have long debated the issue of judicial review and the countermajoritarian difficulty in the U.S. – perhaps too long. The new democracies of the 20th and 21st century uniformly created constitutional courts whose central function was to check the exercise of power by the political branches. In addition, most of these new democracies entrusted to these courts not only the power of judicial review, but the power to be the central administrative body over elections. The gamble is that democracy would be stabilized by guaranteeing limitations on government and repeat elections. We should be cautious about generalizing from the stable democracy of the U.S. to the deeply contested societies of the post-1989 world. I would prefer to see the question whether strong court constitutionalism can sustain democracy in fractured societies as an empirical one-- of "does it work?" If it does, we can indulge the theoretical question of the legitimacy of how judicial power is exercised, but down the road a ways. Posted
by JB [link]
Tuesday, June 30, 2015
Hobby Lobby’s Bitter Anniversary
Nelson Tebbe, Richard Schragger, and Micah Schwartzman
A year ago today, the Supreme Court handed down Hobby Lobby. There, famously, the
Court extended a religion accommodation to a business corporation, freeing it from
the legal obligation to include coverage for certain contraceptives in its
employee health plan. At the time, the Court strongly implied that the impact
on employees would be “precisely zero.”
Yet today, a full year after the Court issued that statement,
Hobby Lobby’s employees are still not receiving coverage. As we explained in a
previous post, the Obama Administration has not yet implemented the
solution that the Court suggested in its opinion, perhaps because of
understandable difficulties defining what counts as a closely-held corporation
(that definition matters because the Court limited its holding to such
entities). Moreover, any solution that is ultimately provided cannot be
retroactive, according to the Court’s own doctrine. And Hobby Lobby may well have
stopped providing contraception coverage even before the Supreme Court ratified
its ability to do so.
In the interim, employees must be suffering harm that is
serious and irreparable. As Judge Posner said in his opinion last month for the
About half of all pregnancies in
the United States are unintended, and 40 percent of them end in abortion and
many others in premature births or other birth problems. Many of the unintended
pregnancies are teen pregnancies, and contraceptive use has been found to be
positively correlated with decreased teen pregnancy. Because out-of-pocket
expenditures on female contraceptives can be substantial for many women, the
provision of such contraceptives without cost to the user can be expected to
increase contraceptive use and so reduce the number both of unintended
pregnancies and of abortions. Furthermore, “women who can successfully delay a
first birth and plan the subsequent timing and spacing of their children are
more likely than others to enter or stay in school and to have more
opportunities for employment and for full social or political participation in
(Citations to the scientific literature omitted; Judge
Posner also cites to the discussion of the benefits of contraception coverage
without cost sharing in the D.C. Circuit's opinion in Priests for Life.) Although some
commentators have characterized this harm to employees as merely temporary or otherwise
negligible, that view is seeming more and more implausible.
It should be noted that many of the for-profit corporations that
objected to the contraceptive mandate opposed all forms of contraception, not only those drugs that Hobby Lobby’s
owners and others believed to be abortifacients. Furthermore, since Hobby Lobby was decided, many companies
have received permanent injunctions that exempt them from paying for all forms
of contraception. The Becket Fund lists 47
injunctions granted to for-profit companies, several of which object to
providing broader contraception coverage. See, for example, this injunction
granted to Autocam Medical, LLC, a company with more than 600 employees in the
U.S. The controversy around Hobby Lobby
was never only about abortifacients. The scope of the litigation has always extended
more broadly to contraception generally.
In granting exemptions for Hobby Lobby and other
for-profits, the Court should have conditioned relief on absence of harm to their
employees. Under that regime, companies could win accommodations but only if and
when a victory would not impose harm on third parties. As we have been arguing,
along with others, the imperative of avoiding harm to others is required by
both the Establishment Clause and free exercise provisions. Without requiring protection
of third parties, the Court has set the conditions for ongoing constitutional and
Over at Concurring Opinions Ronald Collins asks why none of the four "liberal" justices wrote a separate concurring opinion in Obergefell and he notes the same phenomenon in Romer, Lawrence, and Windsor. I have a theory. My guess is that there has long been in place an agreement among the "liberal" justices not to do anything that might upset Kennedy in hot-button cases in which he is in their camp and has taken the majority opinion for himself. A concurring opinion that tilts further left than Kennedy's own opinion risks his rethinking his vote: thus it is best not to write anything at all. (O'Connor in Lawrence didn't have this problem: she concurred in that case on more narrow grounds.) I suspect the agreement among the "liberal" justices extends also to feedback on the draft opinions Kennedy circulates. (And it's quite possible Kennedy's law clerks are in on the game.) My guess is that by agreement such feedback is limited to "Good job, Tony! The only thing I have is that it looks like there is a typo at page 27, line 11." Again, anything more serious or substantive would risk losing the Kennedy vote. Obergefell is just the latest bit of evidence for my theory. It is impossible for me to believe that the amateurish, clunking majority opinion is the product of significant back and forth among five seasoned jurists (and their clerks). Justice Ginsburg is among the best writers in the history of the Court; Justice Kagan, the former Dean of Harvard Law School, knows dreadful prose and half-baked arguments when she sees them. Could these two justices possibly have read without cringing such sentences as "[t]he lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life" and "marriage responds to the universal fear that a lonely person might call out only to find no one there?" Knowing one's own limits is a virtue. It is a real shame that Kennedy didn't have the good judgment to assign the majority opinion in Obergefell to a colleague who could produce a tight, well-reasoned opinion informed by critical feedback. Posted
by Jason Mazzone [link]
Gay rights, religious accommodations, and antidiscrimination law
A symposium on "Religious Accommodations in the Age of Civil Rights" has just been published in the Southern California Law Review. My contribution,"Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law," is available here. This is the abstract:
conservatives feel that it would be sinful for them to personally
facilitate same-sex marriages, and they have sought to amend the laws to
accommodate their objections. These efforts have been fiercely
resisted. The resistance is largely unnecessary. Gay rights advocates
have misconceived the tort of discrimination as a particularized injury
to the person rather than the artifact of social engineering that it
really is. Religious conservatives likewise have failed to grasp the
purposes of antidiscrimination law, and so have demanded accommodations
that would be massively overbroad. If those purposes are carefully
disaggregated, the result is different from what advocates on either
side have demanded.
This issue exposes a major flaw in
progressive thought, one that entrenches the very inequalities the left
seeks to combat. The individual-injury-based conception of
antidiscrimination law has not only produced excessively harsh treatment
of religious conservatives. It has entrenched racial and gender
subordination, by imagining discrimination to be the conduct of a few
bad actors rather than a structural wrong that demands structural
Obergefell and the End of Religious Reasons for Lawmaking
Micah Schwartzman, Richard Schragger, and Nelson Tebbe
At Religion & Politics, the online publication of the Danforth Center on Religion and Politics at Washington University in Saint Louis, we argue that Obergefell put an end to exclusive reliance on religious reasons for laws that touch on basic rights. Here are the first few paragraphs:
"In Obergefell v. Hodges, marriage equality for same-sex couples became the law of the land. In the wake of the decision on Friday, focus has intensified on religious freedom for traditionalists. Few of the questions about religious accommodation are novel—they had been playing out in the states for some time. Yet the decision did have important ramifications for the relationship between religion and government in the United States, and it does mark the formal beginning of a new phase in the so-called culture wars.
The most significant impact of the Obergefell decision for the relationship between religion and government is that it put an end to lawmaking solely on the basis of religious reasons. From the beginning, the only real basis for excluding same-sex couples from civil marriage was religious. At the oral argument in the Supreme Court, as in lower courts, the states struggled to justify marriage exclusion in terms that all citizens could understand. Their theory that expanding civil marriage would weaken a conception of marriage linked to procreation, and thereby lead opposite-sex couples to remain unmarried, was nonsensical. In the Obergefell opinion, the Court called it “counterintuitive.”
So when the Court struck down exclusions of same-sex couples from civil marriage, it implicitly—but clearly—rejected the idea that such a law could be based on religious reasons alone, without understandable secular aims. Those justifications could not suffice to justify discrimination with respect to a basic freedom like the ability to marry."
A Note to Append to Justice Scalia's Dissent in Arizona Redistricting
As Justice Scalia observed, the Court in Coleman v. Miller was "equally divided" on one of the questions in the case, though not on the standing question, where the vote was five (three plus two) to four. I quote from a work in progress (by me), with apologies for the sometimes telegraphic nature of the phrasings:
How could a Court
consisting of nine Justices, all of whom cast votes on the other issues in the
case, be equally divided? A note in the Yale
Law Journal on the case had the title, “Sawing a Justice in Half,” and
wondered whether it was “possible to saw a Justice in half during a conference
and have him walk away whole?”
Justice Frankfurter, the justices realized that their three-to-two-to-four
division created a problem only late in the deliberations. Justices Butler and
McReynolds had seen no need to cast votes on any other than the length-of-time
issue, which was sufficient to justify a reversal. As the divisions within the
Court appeared, so did the need to figure out how to write a judgment. Justice
Butler apparently went along with the Chief Justice on the lieutenant-governor
issue. Black and his colleagues did not. The majority vote on standing may have
put them under some pressure, but not enough. Black’s opinion relied on a
different doctrine of nonjusticiability, the political questions doctrine, and
his analysis was only slightly different from Hughes’s. But, Hughes‘s draft
opinion dealt with the lieutenant governor issue squarely on the merits, and it
is difficult to see how he could have done otherwise. Black and his colleagues
might have been compelled to say something about the substantive issues, but
only to the extent that they could dispose of them by invoking a justiciability
doctrine. They would not go so far as to rule on the merits of one of the
By this time,
though, it was late in the Term – the decision was announced on June 5, 1939 –
and the irascible Justice McReynolds had left for his vacation. As Frankfurter
put it, “nobody was going to try and call him back – he would
have told them, frankly, ‘Go to hell.’ He wouldn’t have come back.” Concluding
that McReynolds’s vote on this single issue was not needed to enable the Court
to issue a judgment, Hughes decided to announce an equal division.
Id. at 447; Note, “Sawing a Justice in Half,” Yale Law Journal 48 (--- 1939):
1455-58, at p. 1458. Bennett Boskey attributes the note to Yale Law professor
Harry Shulman, “Recollections of West Virginia State Board of Education v.
Barnette,” St. John’s Law Review 81 (--- 2007): 755- , at p. 787 (comment by
A copy of Hughes’s draft, with the section on the lieutenant-governor issue, is
in Hugo Black Papers, Manuscript Division, Library of Congress, box 256, folder
Coleman v. Miller.
“Recollections of West Virginia State Board of Education v. Barnette,” note ---
above, p. 787 (comment by Bennett Boskey).
Obergefell, Democratic Constitutionalism, and Judicial Review
Among their many other virtues, the opinions in Obergefell v. Hodges contain an important debate about judicial review in a democratic society. All of the dissenters in Obergefell criticize the majority for preempting the decisions of state legislatures across the country and prematurely ending the debate on same-sex marriage.
Justice Kennedy offers two different kinds of responses. At first glance, they seem to be in some tension with each other; in fact they are two ways of describing the same phenomenon-- how lawyers and judges' understandings of constitutional values change over time in conversation with constitutional debates in the larger public.
One of Kennedy's responses to the dissenters is to quote Justice Jackson in West Virginia Board of Education v. Barnette that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” The relevant question is not how much public support there is for same-sex marriage, but whether the right to marry is fundamental and includes same-sex couples. This is a question of law. For this reason, Kennedy explains, the Court was wrong in Bowers v. Hardwick and should have begun to protect gay rights in 1986, if not earlier. This response treats the interpretation of constitutional rights as isolated from the influences of democratic politics. It boldly proclaims that democracy must yield to fundamental rights, begging the question of how judges discover and articulate implied fundamental rights. Kennedy might respond that judges reason from precedent in common-law fashion. But precedents can be read in many ways.
Elsewhere in the opinion, however, Kennedy reasons quite differently, providing a far more important response to the dissenters.
Richard Posner is a marriage socialist. When explaining why a right to same-sex
marriage can be distinguished from a right to polygamy, he wrote:
[P]olygamy imposes real costs, by
reducing the number of marriageable women.
Suppose a society contains 100 men and 100 women, but the five
wealthiest men have a total of 50 wives.
That leaves 95 men to compete for only 50 marriageable women.
This seems nonsense
for numerous reasons and for libertarian reasons in particular. Implicit in Posner’s preference for two
person marriage is a preference for equality over liberty, a commitment to
powerful anti-trust laws, and an admission that the Constitution protects at
least quasi-positive rights to government benefits.
Judicial modesty, as TheNew
York Times' Adam Liptak observed
Friday, was a theme of Chief Justice John Roberts’s opinions in the same-sex
marriage and Obamacare cases. In the latter, the Court’s job was to implement
the purpose of the statute, not to defeat it by cramped hypertechnical
interpretation. “In a democracy, the power to make the law rests with those
chosen by the people,” Roberts wrote. In the former, he dissented that “judges
are unelected and unaccountable, and that the legitimacy of their power depends
on confining it to the exercise of legal judgment.”
Liptak was careful not to
endorse this claim of judicial restraint, and when one considers Roberts’s
opinions in context—that is, beyond the context of these two decisions—the
claim is hard to take.
I elaborate in a column in the New Republic Online, here.