On the anniversary of its decisions striking down laws banning “sodomy” and a key provision of the Defense of Marriage Act that prevented legally-married same-sex couples from obtaining federal recognition, the Supreme Court on Friday declared a full national right to same-sex marriage.
The court’s decision was 5-4, with Justice Anthony Kennedy writing the decision and joined by the court’s four Democratic nominees. But though the conservative dissents will garner the most attention from critics, it’s actually the majority opinion that may cause LGBT rights advocates the most headaches in the years to come.
While Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas are wrong about same-sex marriage, they weren’t wrong about Kennedy’s majority opinion, which leaves a lot to be desired. All of Kennedy’s same-sex marriage opinions have all contained passages whose legal reach exceeds their rhetorical grasp, and even people sympathetic to Kennedy’s conclusions will wince in recognition when reading Scalia’s snarky lines about Kennedy’s “straining-to-be-memorable passages” and “inspirational pop-philosophy.”
Much worse that its aesthetic problems, however, is where Kennedy leaves equal protection law as it pertains to LGBT rights more generally. As with Kennedy’s DOMA opinion – about which I wrote that he “flirt[ed] awkwardly with federalism, due process and equal protection rationales without ever quite summoning up the courage to invite one to the prom” – he maddeningly continued in this opinion to vaguely invoke both equal protection and due process theories without clarifying the applicable standard when it comes to LGBT rights more generally. “Each concept – liberty and equal protection – leads to a stronger understanding of the other,” asserted Kennedy.
The problem with Kennedy’s judicial vagueness is that public officials and lower courts need to know whether classifications based on sexual orientation should be subject to heightened scrutiny, like those based on race or gender, or whether such classifications require only a “rational basis” , like economic regulation. If heightened scrutiny applies, states can only use sexual orientation classifications in law if it they are closely related to a compelling state interest – a test states usually fail. If states need only a “rational basis,” courts are generally very deferential to the state. After Friday’s opinion, it seems obvious that heightened scrutiny is being applied in practice, but Kennedy inexplicably refuses to say so. The refusal to define sexual orientation as subject to heightened scrutiny will lead to unnecessary confusion, and possibly permit federal and state judges to deny LBGT rights claims that even Kennedy might think should be upheld.
By not being more specific about his rationale for forcing all states to recognize and perform same-sex marriages, Kennedy leaves open the legal possibility that marriage is the only form of discrimination against same-sex people that is covered by the 14th Amendment. But LGBT people face many other types of discrimination – in public accommodations and in employment, for example – that now may have to be fought out case by never-ending case in the lower courts.
Still, the dissenting opinions are at least as interesting than Kennedy’s majority, because they reveal how much American attitudes towards LGBT people have changed over the years.
For instance, for the first time, the dissents hold substantive opposition to same-sex marriage rights at arm’s length: Roberts’s opinion (joined in full by Scalia and Thomas) began by arguing that proponents of the right to same-sex marriage “make strong arguments rooted in social policy and considerations of fairness” and concluded by saying that “If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision.” ustice Scalia’s dissent observed that “The substance of today’s decree is not of immense personal importance to me.” Only Alito refused to distance himself from the policy (and personal) consequences of his legal conclusions.
But that even Scalia felt a need to express a marginally-tolerant view of LGBT people helps to explain why the court recognized a right to same-sex marriage. Contrast the dissents to the majority opinion in the 1986 sodomy-ban case Bowers v Hardwick, when the court declared that the idea of a right to engage in consensual same-sex intimacy “facetious”, and Chief Justice Burger’s concurrence asserted that “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” In Romer v Evans, Scalia himself compared laws that discriminated against LGBT people to laws against “murder … or cruelty to animals” and asserted that the state could express “animus” towards their conduct; in Lawrence v Texas he railed against “the so-called homosexual agenda.”
Scalia’s dissent on Friday was markedly more muted: space he would have once taken up complaining about the pernicious effects of LGBT people on American political culture was spent instead trying out material in case the now-shuttered nightclubs in the Catskills reopen and need a “take my wife, please” comedy act: “one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie” he wrote, followed by “[marriage] constricts, rather than expands, what one can prudently say.”
Rather than making policy arguments or railing against LGBT people, Roberts and Scalia focused on judicial restraint. “Do not celebrate the Constitution,” said Justice Roberts, “[i]t had nothing to do with” Friday’s outcome. “This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” averred Scalia.
Their arguments about judicial discretion are highly unconvincing: as long as there is judicial review, judges will have the discretion to make judgments about the meaning of broadly-worded constitutional clauses in ways that have important policy consequences. And the pleas for judicial modesty are particularly hard to take coming from today’s dissenters, all of whom just two years ago put their names to an opinion gutting the Voting Rights Act based on a judicially-invented theory of states’ rights last seen in a 1857 opinion in which Chief Justice Roger Taney found that Congress could not ban slavery in its territories and African Americans could never be American citizens.
But while today’s opinion would have almost certainlybeen much better had Kennedy assigned it to Ruth Bader Ginsburg rather than keeping it for himself (as is his prerogative as the senior justice in the majority), it still gets to the right conclusion. As frustrating as his opinion might end up being for LGBT more generally, on Friday, Kennedy was still the swing vote in the Brown v Board decision of LGBT rights. Today, his recognition of one of the fundamental rights of same-sex couples in all 50 states is what matters most; if they have to come back to him for the others, at least it’s clear to lawyers where he’ll likely stand.
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