Monday, June 29, 2015

Responding to Chief Justice Roberts' Dissent in Obergefell

Chief Justice John Roberts wrote a thunderous dissenting opinion in the same-sex marriage case, Obergefell v. Hodges. Here is my response.

The Chief Justice unleashed a powerful rhetorical attack on the decision of the majority to recognize that gay and lesbian citizens have a constitutional right to marry. He raises several arguments. Here they are, with my responses.

1. Same-sex couples do not seek to join the institution of marriage; instead they seek to change the institution of marriage.

The Chief Justice places great reliance on this point. There are two grave difficulties with it. First, he falsely asserts that marriage has taken one particular form everywhere in the world throughout all time. Second, he irrationally assumes that gay and lesbian couples seek something other than to be admitted to the institution of marriage.

Chief Justice Roberts certainly has a blinkered understanding of history. He says:
For all those millennia, across all those civilizations, "marriage" referred to only one relationship: the union of a man and a woman.
He refers to:
This universal definition of marriage as the union of a man and a woman.
Chief Justice Roberts' timeless view of marriage is simply wrong. Marriage is different in different places and has been different in different times. For example, many civilizations and societies have recognized plural marriage; it may even be the rule, historically. Perhaps the most famous family in human history is the family of Abraham, to which three great modern religions trace their roots. Would this historical pedigree make plural marriage constitutional? Child marriage, arranged marriage, and forced marriage are hardly uncommon in human history. Would these "traditional" views of marriage necessarily be constitutional today? Our own society recognized coverture -- the husband's de facto ownership of the wife and her property -- well into the 1980s, when the Supreme Court finally declared those laws to be unconstitutional, a violation of the Equal Protection Clause. Did that not work a fundamental change in the institution of marriage? I hope that Chief Justice Roberts agrees that coverture was an abomination. As the old hymn says,
"New occasions teach new duties / Time makes ancient good uncouth
They must upward still and onward / Who would keep abreast of truth."
2. The purpose of marriage is procreation and to prevent sexual relations outside of marriage.

Time and again Chief Justice Roberts suggests that procreation and the channeling of sexual relations is why marriage exists. He explains:
The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conceptioni of a child, that child's prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should ovccur only between a man and a woman committed to a lasting bond.
I have news, Sir -- sexual relations and procreation happen outside of marriage. A lot! The purpose of marriage is not procreation or control of sexual relations but rather to permit people to create a family within which children can be raised. Same-sex couples share this same purpose, a point that Justice Kennedy emphasizes:
As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families. Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same sex couples.
Gay and lesbian couples are raising hundreds of thousands of children in this country, and they want to raise their children within a family structure. That is why, for example, in this very case April DeBoer and Jayne Rowse challenged the laws of Michigan that prevent them from both adopting their children. As Justice Kennedy said:
Were tragedy to befall either Deboer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt.
Chief Justice Roberts' righteous anger spills over against the majority in his concern for "the children," and yet he does not spend a single sentence addressing the consequences of his ruling on on the real-life children under the care of DeBoer and Rowse!

3. Justice Kennedy and the majority failed to respect judicial precedent, in particular Washington v. Glucksberg which held that only those rights that are "deeply rooted in this nation's history and tradition" are protected under the Constitution.

Chief Justice Roberts contends that the majority does not follow precedent in the field of substantive due process. He cites Washington v. Glucksberg (1997) for the proposition that our constitutional rights are circumscribed by "tradition." He complains that the majority effectively overruled Glucksberg by recognizing a right that was not "deeply rooted" in history and tradition.

It is the Chief Justice who is being unmindful of the Court's precedent. The Supreme Court expressly recognized that rights relating to "personal and intimate choices" relating to marriage and family relationships constitute a fundamental right over twenty years ago in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), when it stated:
It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood.
And the Court in Casey added:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
This passage was cited, quoted, and reaffirmed by the majority of the Supreme Court in Lawrence v. Texas (2003), which was handed down six years after Glucksberg.

In Lawrence the Court was even more specific in rejecting "history and tradition" as circumscribing our fundamental rights. In the course of upholding the rights of gays and lesbians to engage in sexual relations, the majority of the Court embraced Justice Stevens' dissenting opinion from Bowers v. Hardwick, in which Justice Stevens' had written:
The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.
The Chief Justice neglects to mention this particular holding of the Supreme Court. It is the Chief Justice who fails to respect controlling judicial precedent.

4. Maintaining tradition is an adequate justification for a law denying same-sex couples the right to form a family.

Throughout his opinion the Chief Justice articulates but one justification for laws barring gay and lesbian couples from the institution of marriage -- tradition! But as noted above the Supreme Court has repeatedly and properly rejected tradition as an adequate justification for laws affecting people in their "personal and intimate choices" regarding marriage and family life.

The Chief Justice had the opportunity throughout his passionate dissent to identify one reason - any reason - other than tradition to exclude gay and lesbian couples from the institution of marriage. He did not take that opportunity.

5. The Court's decision in Obergefell is just like Dred Scott v. Sanford and Lochner v. New York.

Chief Justice Roberts draws analogies between the majority's decision in this case and the Supreme Court's rulings in Dred Scott and Lochner v. New York. One wonders, why is the Hitler analogy missing?

In Dred Scott the Supreme Court ruled that African-Americans were not and could never be citizens of the United States. In so ruling the Supreme Court based its decision on history and tradition. If anything the reasoning in Dred Scott is analogous to Chief Justice Roberts' reasoning in this case.

In Lochner the Court struck down a maximum hours law that was intended to protect bakers because the members of the Supreme Court had no empathy for the people who worked in that particularly dangerous occupation. The law under consideration in this case seek to exclude an entire class of people from enjoying the social and material benefits of marriage. The law struck down in Lochner sought to fight oppression, while the laws in this case seek to oppress.

Tell me, Chief Justice, what precisely is the analogy you intended to draw? Are you on the side of freedom or the side of oppression? The more accurate analogy is between your position and the decisions of the Court in Dred Scott and Lochner.

6. Justice Kennedy and the majority "sully" those on the other side of the debate.

The Chief Justice complains that the majority accuses those who oppose same-sex marriage as "demeaning," "stigmatizing," "disparaging," "disrespecting," "subordinating," and "humiliating," gay and lesbian couples and their children. He is outraged that the majority accuses the dissent of "inflicting dignitary wounds" on same-sex families.

The opinion of the majority does no such thing. It simply states that the laws excluding same-sex couples from the institution of marriage demean, stigmatize, disparage, disrespect, subordinate, humiliate, and inflict dignitary wounds on same-sex families. The Chief Justice does not dispute this point. One wonders why? Could it be that it is perfectly obvious and undeniable that these are the effects of those laws?

7. The right of gay and lesbian couples to marry should be left to the democratic process.

This one's easy. Let's just use the Golden Rule. Chief Justice Roberts, would it be constitutional if the law only permitted same-sex couples to marry? Would you be content to leave your fundamental right to marry and form a family up to the democratic process?

The majority's response to this argument is perfect. They quote Justice Robert Jackson's timeless words from West Virginia Board of Education v. Barnette:
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. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The Chief Justice's dissent in Obergefell distorts history, disregards precedent, fails to consider the importance of marriage to same-sex couples and their children, projects the similarity of his own position to oppressive Supreme Court rulings onto the supporters of same-sex marriage, refuses to address the demeaning and humiliating effects of these laws on same-sex families, and hypocritically appeals to the democratic process to determine matters that are central to other people's families ... something he would not tolerate if it were applied to his own family.


  1. I had very similar thoughts after reading Justice Roberts dissent. But you do a much better job than could I in articulating these criticisms.

  2. Wonderful commentary. Dread Scott and Lochner decisions did not end up being regarded the worst SCOTUS decisions because of "unrestrained use of substantive due process". As Chief Justice claims. They ended so because they were cruel and heartless. Just like Justice Roberts dissent in Obergefell.


I cheerfully concede, for the sake of argument only, my every shortcoming and limitation. In commenting please address the merits of my arguments.