Anatomy of the Creation of a Fundamental Right
The Supreme Court's Decision on Gay Marriage
By Dan Riker
June 28, 2015
"Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations."
-- Justice Anthony Kennedy, June 26, 2015
The Supreme Court's decision in Obergefeld et al v. Hodges, Director Ohio Department of Health, et, al, June 26, 2015 is a landmark in American legal history. An entirely new fundamental right, same-sex marriage, was recognized by the 5-4 majority and made the law of the United States.
This case illustrates the deep divides in legal, social, religious and political philosophy in the United States that have existed since the founding of the nation and still are with us, and which arise almost every time there is a controversy over the rights of citizens and the roles of government and the courts.
What is the proper way to interpret the Constitution? Should the Supreme Court be limited to saying what the law is, not what it should be? Is the Court limited to explicit rights and powers granted by the Constitution, or can it infer that new rights can arise from application of those explicit rights to circumstances not contemplated by the framers? How much weight should the Court give to prevailing social and religious values that may be in conflict with an asserted new right? When there is a conflict, which should have priority, the new right, or the right of the free exercise of religion? Should the Court defer to the political process to resolve a conflict over rights? If the asserted right does not involve any power granted to the federal government in the Constitution, should the decision to recognize that right reside with the states?
The Constitution guarantees a number of basic rights to all American citizens, with most of the important ones in the Bill of the Rights, the first 10 Amendments that were adopted shortly after the Constitution was ratified. The most notable are the rights of freedom of religion, speech, and the press, the right to near arms, protection against unreasonable searches ands seizures, the rights to a speedy trial, due process and protection against cruel and unusual punishments. In some of the later amendments, slavery was outlawed, citizenship was defined, citizens were granted due process and equal protection under both federal and state laws, women were granted the right to vote, the income tax was approved, the election of U.S. Senators was taken away from state legislatures and given to the public, the sale of alcoholic beverages was outlawed and 13 years later that ban was repealed, Presidents were limited to two terms in office, a more detailed and specific succession to the Presidency in case of the death or disability of the President than existed in the Constitution was provided, the voting age was set at 18, and the Poll Tax was outlawed.
Once ratified, amendments become part of the Constitution with the same force and effect as any other provision. The framers expected there would be many amendments to the Constitution, but in 226 years there have been only 27. An amendment requires approval by two thirds of both houses of Congress, as well as three-fourths of the states, and such approval became much harder to obtain as more states entered the Union.
However, in the 1803 case of Marbury v. Madison, the Supreme Court established itself as the final arbiter for interpretation of the Constitution, a power that is not specifically granted the Court in the Constitution. The Court several times since then has reaffirmed that power and no significant effort ever has been mounted in Congress to change that, either by law, or by amendment to the Constitution.
The Supreme Court's assumption of the power to interpret the Constitution provided an easier method than the amendment process to challenge acts of Congress and the states, and to create new rights not specified in the Constitution. Subsequently, on a number of occasions, the Supreme Court has recognized that rights not specified in the Constitution can be implied from those that are.
- The Court ruled that racially segregated schools violated the 14th Amendment's guarantee of equal protection
- It ruled that the protections of defendants in the Bill of Rights mean that illegally obtained evidence cannot be used against them, that the accused have the right to counsel, that if they cannot afford a lawyer, one will be provided free of charge, that they cannot be compelled to testify against themselves, and that if they are suspects in a crime they must be apprised of these rights.
- It ruled that school prayer violated the 1st Amendment's prohibition of establishing religion.
- It ruled that as a result of the various specific individual rights in the Constitution there is an implied fundamental right of privacy and restrictions on the use of contraceptives and sodomy laws violate that right.
- It has ruled that marriage is a fundamental right and that restrictions on inter-racial marriage, and several other limitations on who could get married, were unconstitutional.
- It ruled that the right of privacy also includes the right of women to have abortions, with some restrictions.
- It has held that fundamental rights do not depend on approval by the voters.
- The Court ruled that the "Defense of Marriage Act," which denied federal benefits to legally married same-sex couples was unconstitutional as a violation of the 5th Amendment's guarantee of due process, and in the same case it let stand a California Supreme Court decision that its state's ban on same-sex marriage, approved by the voters in a referendum, was unconstitutional. That case, United States v. Windsor, authored by Justice Anthony Kennedy in 2013 set the stage for this term's decision, also authored by Kennedy.
In this case, the two questions the Supreme Court agreed to address involved the application of the 14th Amendment, the key provisions of which are:
"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."
The two questions were:
Whether the 14th Amendment requires a state to license a marriage between two people of the same sex? and,
Whether the 14th Amendment requires a state to recognize a same sex marriage licensed and performed in a state which does grant that right?
The majority of the Court decided that the answer to both questions is yes.
In the majority decision Kennedy set the stage by reviewing the importance of marriage in history, how it has changed - in some cases very fundamentally - but how those changes have not made it any less important. In fact, its contemporary significance is a major basis of the Court's decision. He wrote:
"(I)t is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their
respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment."
He reviewed how attitudes and laws regarding homosexuality have changed and that in recent years gays have become more integrated into and accepted by modern society, with some states recognizing gay marriage or civil unions and permitting gay couples to adopt children. In effect, in contemporary America, except for their sexual preference that prevents them from marrying one another in many states, gays are no different from all other citizens.
He then pointed out a fact, ignored by the dissenters, that the Court relied in part on a considerable body of case law that developed in recent years involving sane-sex marriage, and that with only a couple of exceptions, all the federal district and appellate courts as well as state appeals courts have ruled that prohibition of gay marriage is unconstitutional.
As a result of court decisions and decisions by voters and state legislatures, nearly half the states recognize same-sex marriage. At the same time many states had made it very clear they would not recognize it. Thus, a situation existed whereby a legally married same-sex couple, because of job relocations, or other necessity, could find themselves having to move to a state where their marriage was not recognized, something that could put them, and maybe their adopted children, at considerable jeopardy. Kennedy makes the point that resolution of this question was urgent, and was necessary now rather than waiting for whatever was going to happen with the political process because people were being harmed now by the restrictions on same-sex marriage.
Kennedy then stated the fundamental principles that guided the decision, that also illuminate the genius of the Constitution and its framers and show why that document has so successfully endured and remains so relevant and powerful today.
He wrote that under the Due Process Clause of the 14th Amendment, "fundamental liberties" protected by the clause include not just those in the Bill of Rights but also "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs." He then wrote:
"The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.
"The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed."
Kennedy then sets forth "four principles and traditions" to show that "the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples." Those four principles are:
- Based on the decisions outlawing restrictions on inter-racial marriage and other limitations on the right to marry, "the right to personal choice regarding marriage is inherent in the concept of individual autonomy," and thus there is an "abiding connection between marriage and liberty."
- The second principle, based on the case that outlawed limitations on married couples' rights to use contraceptives, "is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals." Furthermore, Kennedy wrote that while an earlier case that invalidated restrictions on homosexuality "confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty."
- The third principle underlying the Court's position that marriage is a fundamental right is that marriage "safeguards children and families," and this now is relevant to same-sex couples because many states permit gays to adopt children. If same-sex couples are denied the right to marry they and their adopted children do not receive the tangible and intangible benefits available to opposite-sex married couples and their children.
- The fourth principle is that marriage is "a keystone of our social order," and state governments recognizing this offer married couples a wide range of material and legal benefits not available to the unmarried. Kennedy wrote:
"The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage."
In response to the argument that same-sex marriage has no precedent and is counter to the global practice that has existed forever, Kennedy wrote:
"If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach... The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."
The majority opinion comes under some criticism in the dissents for somewhat foggy reasoning, in particular in the way it applies and links the equal protection and due process clauses of the 14th Amendment. And it is not the first time Kennedy's reasoning in a case has been criticized. He has gotten enormous criticism from liberals for his decision in the Citizens United case that held that restrictions on corporate contributions to political campaigns violated their first amendment rights, and which has resulted in a great deal of mischief in politics. However, in this case, whatever fogginess there is may be in the structure of the writing, rather than the content.
This is how Kennedy ties the two together:
"The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right."
And he wrote:
"In Lawrence the Court acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State.
Which leads to his conclusion:
This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.
During the time the Court is considering a decision, the justices share their opinions with one another, and each has an opportunity to revise or change his or her opinion as well as making additions or changes to the main opinion and the dissents. The published decision includes the main opinion and any dissents, often with cross references among them, especially when there is sharp disagreement as there was in this case.
Chief Justice John Roberts vehemently, but politely, dissents and his dissent is joined by the other three conservative justices, Antonin Scalia, Samuel Alito and Clarence Thomas, each of whom also wrote separate dissents.
The essences of the lengthy Roberts dissent are that the Court has exceeded its authority by making law rather than interpreting it, that since there is no mention in the Constitution of marriage, how it is governed is a right of the states, and that there is no basis from the rights guaranteed by the Constitution upon which a right of same-sex marriage can be inferred. Kennedy clearly addressed those concerns in his opinion, but those differences of judicial and legal philosophy are likely to continue.
Roberts' criticism of the Court for being too aggressive is somewhat disingenuous because two years ago he was the author of the opinion that crippled much of the Voting Rights Act. He substituted his opinion that these restrictions on state election law changes were no longer necessary for that of Congress that had repeatedly renewed the Act by enormous vote margins. Apparently, whether it is proper to be aggressive depends on whether the rights of citizens are being expanded, or contracted. He also turned out to be wrong about the need for the Act because shortly after the decision a number of states took steps to restrict voting rights.
He also chastises the Court for not giving greater weight to the tradition of marriage as a union between a man and woman. And he raises the question whether changing the definition of marriage may open the door to much more unorthodox marriages.
Scalia has a hissy fit in his dissent, calling the Court's decision a "putsch" and a danger to democracy. He is outranged that the Court has removed the decision from the political process, which he believes was properly addressing the issue. He also doesn't think there is any Constitutional basis for the decision.
Kennedy's pointed rejection of Scalia's signature approach to constitutional interpretation may also have played a part in his rather intemperate dissent.
Scalia has had enormous influence on how the Constitution is interpreted, repeatedly advocating, in opinions and dissents, as well as in public appearances, the idea of original intent, that the way to interpret what the Constitution means is to determine to the extent possible what the framers really intended. This theory has become widely accepted and has been the subject of considerable legal and historical analysis. The framers most likely would be mystified by Scalia's approach because they viewed their document as flawed and requiring a great deal of future manipulation. The vagueness of some portions of the Constitution was entirely intentional.
Kennedy clearly rejected the Scalia theory when he wrote, "History and tradition guide and discipline this inquiry but do not set its outer boundaries," and, "rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."
Alito's dissent argues that much greater weight should be given to the tradition that marriage is between a man and a woman, but that the decision whether to recognize same-sex marriage should be left to the states.
Clarence Thomas' dissent has generated the greatest amount of comment because of a very bizarre statement of his that "slaves did not lose their dignity when they became slaves." It is part of his attack on the Court's use of the term "dignity," which is not a legally-defined term and thus has no independent legal meaning.
However, the bulk of his dissent is based on his extremely narrow interpretation of the word "liberty" as it is used in the 14th Amendment. Quoting from two versions of the Magna Carta of 1215 and from the 17th Century English philosopher, John Locke, who significantly influenced the framers of the Constitution, he argues that "liberty" refers only to the lack of physical restraint. Thus, he maintains, the Court's reliance on the infringement of the liberty of same-sex couples is entirely improper and wrong as a matter of legal interpretation. This is a pet peeve of his, as he has raised it in the past. He has a great fear that more rights will be inferred from the 14th Amendment because of the misinterpretation of the word liberty.
Kennedy clearly rejected this theory - and reinforced his rejection of Scalia's - when he wrote "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."
Thomas also argues the absurdity that if a right is put to a vote and rejected by the majority of the voters, those demanding the right have received their "liberty," at least all the liberty to which they are entitled. He seems to not understand the basic concept of liberty, how it can be different for every individual, and that if it is defined by others, not only is it not liberty, it can be tyranny.
He seems oblivious to the fact that the Magna Carta started the process of the recognition of new rights of the people, new forms of "liberty," and that the entire development and preservation of democratic government has involved a steady process of recognizing new rights of citizens as the need has arisen. The process often is difficult, and frequently violence has resulted when there has been resistance to the adoption of new rights. But the nation has been made stronger and peoples from everywhere have been united as Americans because of the promise of liberty, of equality of opportunity, and the "American Dream," the idea that every person will have a fair chance to improve his or her life in whatever reasonable way that person desires. That is the essence of liberty and it is dramatically different from a lack of physical restraint.
His dissent illustrates the enormous difference in philosophy and perspective between conservatives and liberals. He, Scalia and Alito, and maybe Roberts, don't like government. They view the Constitution's protection of citizen rights mostly as protection of citizens from government. There is some truth to this.
There was considerable concern at the time the Constitution was drafted that if the national government was made too powerful, it could become as tyrannical as the English government had been. Thus, a number of protections are built into the Constitution to try to prevent that from happening, including the federalist structure of government, the checks and balances among the three branches of the federal government, the guarantee of a "republican" form of government, and the protections of individual rights built into the Bill of Rights.
However, the Constitution also contained the most radical view of citizenship that had yet been conceived. The concept of equality under law was inherited from the English, but the concept of equality of all citizens was unique to the Constitution. It has become so much a part of our culture that until recently, when it became obvious that enormous economic inequality has occurred in recent years, we seldom thought about it.
Unlike in England, the Constitution forbids titles of nobility and rank in the U.S. No special privileges can be granted to one class of citizens over another. There are no recognized classes. Bribery is one of only two enumerated crimes in the Constitution for which government officials can be impeached, the other being treason. Government favors were not to be bought, a principle that mostly is ignored in practice. But it still means that government was not intended to serve special interests, but was to represent and serve all the citizens, and also protect them. And in this age of massive multinational corporations wealthier and more powerful than many nations, government may be the only protector of human safety, health and freedom. That idea of equal treatment, or equal protection, has become one of the most important principles of the nation. But while equality of opportunity is mandated, equality of results is not.
This new idea of citizen equality fostered a basic concept of fairness, which has become a major facet of the American character. Americans hate cheaters. We all are supposed to have an equal chance. It isn't a matter of success or failure. We greatly admire success when it is perceived to have been achieved reasonably fairly. There is little sympathy for failures if they have had a fair chance. But Americans get angry when people are cheated out of their chance. And one of the most effective ways to gain support for a cause is to show that it is just, the result of unfair treatment. There was enormous support for the Civil Rights movement in the 1960s because the way blacks were treated in the South was shown to be patently unfair. However, there also was a backlash later against Great Society programs among blue collar whites in many parts of the country, many of whom were struggling financially, not just because of racism, but also because of a perception, right or wrong, that an unfair proportion of government benefits were going to blacks. That perception can be seen today in many of the targets of Republican budget-cutters.
The conservatives on the Court sometimes seem to fail to recognize that the greatness of the Court, and the reverence that so many Americans have for it, is a result of its willingness to protect minorities from the danger in a democracy of what Alexis de Tocqueville called the "tyranny of the majority."
Sometimes, no matter how unfair something is to some people, there is not sufficient popular support within the political system to correct the problem. This is where the Supreme Court has been enormously important to the advancement of human freedom. Without the Supreme Court's integrity and ethical clarity - its willingness to acknowledge the wrongness of an earlier decision by overturning it - school segregation might never have ended, or at least not ended without much greater violence. Without the Supreme Court's determination to enforce the Bill of Rights, school prayer may have continued in public schools to violate the religious freedom of many. Without the Supreme Court's willingness to take on the opposition of so many of the major religions in the nation, women who needed, or wanted, abortions would have had to continue to travel great distances, or endanger their lives with back-alley abortionists. Unfortunately, this present Court seems unwilling to stop the current efforts of many states to sabotage that fundamental right.
But a majority of this Court did have the integrity to recognize the unfairness of the marriage laws of many states when it came to same-sex couples and that a hodge-podge of some states recognizing it and others not doing so was not going to provide the equal protection and due process that same-sex couples had a right to receive, regardless of where they lived.
And that brings up the issue of states' rights. This Court has sown a lot of mischief recently in trying to revive a concept that is grossly out of date. The Constitution is the supreme law of the land. No state law can trump a federal law. The American people are citizens of the United States, not of the states in which they reside. The entire concept of states' rights came out of the fact that originally there were 13 separate colonies and they wanted, for various reasons, including the preservation of slavery and other economic advantages, to maintain a certain amount of independence from the federal government. That original need has virtually disappeared in contemporary America where most states are enormously dependent on the federal government and where there is much less identification by many people with any particular state.
There was a time when there was much less movement among states than there is today, when communications were not instant, when travel was not so fast. But in today's world, locale is virtual. It is not uncommon today for people to live in a number of different states during the course of their lives. It some areas of the country it is not uncommon to live in one state and work in another. Electronic commerce and communications cross all boundaries inside and outside the United States. Because the right to travel is a fundamental right, it makes no sense for other fundamental rights to be treated differently by different states. Fundamental rights should be uniform across the nation. The majority of the Court acknowledged this.