Oh My God The Obergefell Opinion Is Bad

Last summer, the Supreme Court decided the hideously-named Obergefell v. Hodges, which held that the Constitution protects what we on the left these days call marriage equality, i.e. that state laws defining marriage as between a man and a woman are unconstitutional. And... what with one thing and another I just never really got around to reading the case. Not the majority opinion, not the dissents. I heard some things about it. I heard that Kennedy did a lot of pronouncing about how wonderful marriage is, including a final paragraph the reading of which has apparently become a fixture at weddings. I heard that, as usual in these sorts of cases, his doctrinal analysis was a mess, and (as in Lawrence v. Texas) he was kind of unclear about whether this was an equal protection case or a "substantive due process" a.k.a. fundamental rights case. I heard that Chief Justice Roberts's opinion was far more fire-breathing culture warrior than I had been expecting after his curious dissent in U.S. v. Windsor. But I didn't read it for myself. Between those few snippets and my knowledge of Kennedy's previous gay rights jurisprudence I figured I had a decent kind of idea what the opinion said, and while it left a lot to be desired (aside from, y'know, deciding the case correctly), it had some interesting, maybe even promising stuff going on.

Well I just actually read the damn thing, and oh my god it sucks. It's waaaaaaaaaay worse than I had been imagining. First of all, about half the opinion isn't legal analysis at all, it's Anthony Kennedy Tells The Story of Marriage And How Wonderful It Is. Which first of all is just weird and kinda gross to read in the U.S. Reports. It's like Scalia's dissent in U.S. v. Virginia, the VMI case, where he includes the full text of the Virginia Military Institute's Code of a Gentleman at the end. This is just not something that belongs in a judicial opinion, not like this anyway. (As I'll note later, there could be a place for a little bit of this sort of thing in a better-crafted opinion, but Kennedy massively overdoses us on it.) Second, while there's some nice stuff in what he says, particularly the bits about how the changes that have been made to the institution of marriage over the centuries as women have achieved greater and greater social progress have strengthened and improved marriage, a lot of it is kind of gross on its own terms. He goes on and on about how wonderful marriage is, how it's a bond unlike any other, so ennobling, it's at the heart of human civilization, blah blah blah, and then he's like, hey isn't it great how these gay people love marriage as much as I do! They want in to our patriarchal (if slightly less than it used to be) institution, hooray!!! He literally goes so far as to say that "Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order." WTF, bro.



And then there's the legal analysis itself! Man it's bad! So he basically writes the thing as a fundamental rights opinion. But there's a problem with that. It makes some sense in Lawrence v. Texas, which struck down anti-sodomy laws, to cast the decision as one of fundamental rights. I think it's correct that anti-sodomy laws infringe upon the individual liberty which is protected by the Fourteenth Amendment; in fact I think this springs from some pretty deep and important things about the nature of individual rights under our Constitution. (Eventually I'm gonna write a book about that.) There was an argument that the Equal Protection Clause (the basis of Justice O'Connor's concurring opinion) provided a more firm doctrinal footing for the decision, but it's not like it doesn't work as a privacy/liberty case.

Obergefell is not like that, for one simple reason: in a world without the state there's no such thing as marriage. Well, no such thing as civil marriage anyway. Marriage as a constitutionally-protected liberty interest doesn't quite work, because marriage is chiefly a bundle of benefits and burdens granted by the state to those who wish to assume them. So it's strange to talk about civil marriage as a constitutionally-protected individual liberty. It's not an individual liberty at all, it's a state-created institution. And our constitutional jurisprudence is loath to hold that the Constitution requires the creation of any given institution or entitlement by the government. That's the idea of "positive rights," and it is commonly thought that our Constitution recognizes no such rights, not in a legal, judicially enforceable sense anyway. If a state wanted to abolish civil marriage altogether, it could probably do that, though it could not, of course, persecute people who lived together as a de facto married couple.

Now there's a way to address this problem, if you want to come at the case from the fundamental rights vantage-point rather than the straight-up equal protection angle. What you say is, yes, okay, the Constitution does not actually require that states create civil marriage. But our history and traditions make it clear that marriage is not just another legal arrangement, like a limited-liability partnership or whatever. It really is a fundamental right, even if it is only a statutory right. And that means it has a special status for equal protection purposes. Because marriage is so important, because it is a fundamental right, it's that much less okay to exclude any given group of people from it. The justification for doing so must be significantly higher. This is current doctrine; heightened scrutiny under the Equal Protection Clause applies not only to discrimination against suspect classes but also to discrimination as to fundamental rights, e.g. voting. And I actually think this sort of makes sense, under my theory of equal protection that I'm currently working on writing up. So if you want to build your opinion around the importance and significance of marriage, you can do that!

But that's not what Kennedy does. Instead he just doesn't tackle the "positive rights" problem at all. It feels, on reading his opinion, like he might want to strike down a state law disestablishing civil marriage altogether. Which is really weird! And then he brings the Equal Protection Clause in, not to do the sensible doctrinal work described above, but, seemingly, just as an alternate justification. He says something about how rights guaranteed by due process are often also secured by equal protection, which... is pretty nonsensical, really. The Equal Protection Clause really is not commonly thought of as guaranteeing any particular rights; its command, rather, is that people enjoy their rights equally. (There may be a few exceptions; I have always believed, for instance, that comprehensive social segregation really is intrinsically unconstitutional, no matter the circumstances, though this may really be the Citizenship Clause doing the work.) And of course he doesn't employ any sort of equal protection doctrine, not even the strict scrutiny standard typically thought to apply when fundamental rights are denied to some but not all. That would've sort of made sense. Nope.

Even better, he could have finally just declared sexual orientation a suspect classification. The genius of that move, in our current doctrinal context at least, would have been to send a clear signal to the lower courts about what other forms of anti-gay discrimination are unacceptable. Any sort of "fundamental rights" framing will leave deeply unclear the issue of how much states can disadvantage LGBT people with respect to non-fundamental rights or interests. A decision resting squarely on the equal protection clause would have created a strong basis for future cases striking down other homophobic laws. That would've made a lot of sense! But, again, nope.

It's just a mess. The legal analysis is a mess. He makes about the weakest possible argument for a constitutional right to gay marriage, and never even acknowledges the glaring logical flaw in that argument. The end result is to make the entire doctrinal section of the opinion just feel like hand-waving. What's really doing the work is all the weird paeans to marriage. Justice Anthony Kennedy thinks that marriage is super important and isn't it horrible that these nice gay people who just want to do traditional conservative things like get married aren't allowed to, so he decided that's what should happen. Based on the opinion he wrote, that charge is 100% justified. Which is a damn shame, because the legal issues in the case were not hard, not at all. It's really blindingly obvious that these laws deny to some people their equal protection, and are hence unconstitutional.

Kennedy's travesty of an opinion did a real injustice to the very people it protected, and to the Constitution in whose name it offered that protection.