Mark Twain, lauding the effectiveness of a short communication over a long one, once joked “I didn’t have the time to write you a short letter, so I wrote you a long one instead.” When blogging about the important civil justice issues we cover in this blog, I’ve tried to bear this in mind, as well as the more oft-quoted maxim that “brevity is the soul of wit,” but there are times when it is necessary to say a bit more than just a few words.
This is one of those times. I’ve blogged repeatedly about employment and fundamental civil rights, because that’s my calling. I’m a civil rights trial lawyer. I represent victims of abuse. It’s natural and sensible that these subjects would be near and dear to me professionally and personally. Yet, I’m not a gay person. I don’t have anyone close to me in my life right now who is. Yet my sincere and honest support of the rights of the LGBT community (across the board and throughout the history of my practice) can’t be described as purely “professional.”
I guess it’s because I’m a bit of a dreamer. I’ve mentioned before in my blogs – sometimes self-deprecatingly and sometimes in the hopes that other geeks will recognize the references – that when I was young I fell I love with Star Trek. I hoped that one day, mankind would take that path. Not just the path to the stars, and to new frontiers, but to a better world. The driving assumption of Star Trek‘s credibility was a united earth that had gotten past the petty problems of war, poverty, the inequality of nations, planetary resource management and social issues that attend conversations of race, ethnicity, religion and (at least impliedly) sexual orientation.
I’ve never lost that attachment to a desire to have a better world. Maya Angelou said that justice is like “fresh air.” How right she is. When the air is poisoned by bigotry disguised as religious belief or attachment to “tradition,” everyone suffers from the foulness. Martin Luther King said that “justice anywhere is a threat to justice everywhere.” He, too, seemed to understand that there are times for “debate” about social justice, and then there are times when a people must move beyond debate and reach a new way of understanding an issue.
So when I’ve blogged in the past few years about how one day, equal marriage will be the law of the land, I was both speaking professionally as a Constitutional scholar (because in my view, an honest Constitutional scholar must recognize the validity of the Supreme Court’s decision), but I was also speaking as a wide-eyed child grown into a man who sincerely wishes to see the world of my imagination.
This is why I was so moved – surprisingly, almost to tears – when I watched the announcement on CNN that the Supreme Court had decided, predictably along ideological lines, the case of Obergefell v. Hodges, and that the Supreme Court decided it the right way. The just way.
I promised after a short “reaction” blog that, for those who actually read this blog (like all nine of you), I’d get into a deeper discussion, as a Constitutional scholar and as a civil rights advocate, of what I see in the opinion and what I think it means. That necessitates a discussion not only of the majority opinion as written by Justice Kennedy, but also an analysis of those portions of the dissents (mostly that of Justice Roberts, but a little bit from Justice Scalia).
Now look. I realize that, in all likelihood, I’m not talking to attorneys, nor to anyone with more than an occasional social or political interest in our American system of justice. I’ll avoid pedantry. Yet from time to time it will be necessary to mention a few overarching legal concepts and a few important legal decisions. They’re important for you to understand, if you care to, the substance of what the Justices said and the substance of my response. I hope you’ll be patient.
First of all, understand that the people in this case were real people, with real issues at the heart of the cases that generated this decision. Mr. Obergefell, for example, was “married” – and I use the quotations to illustrate how things were “before” this decision – to his husband. Yet he was denied, by Ohio’s law which defined marriage as between a man and a woman, the right to be on the death certificate. This is a right that opposite sex couples take for granted. Frankly, that’s not even accurate to say. In order to take something for granted, you’ve got to know it exists. I challenge you, if you’re a member of an opposite-sex married couple, to list all of the rights that both the state and federal governments guarantee to you simply because you’re “married” (rather than a member of a “domestic partnership” or “civil union” or some other term meant to substitute for the word “married”). Oh, you could probably name a few: taxation benefits, right to make medical decisions for the other, inheritance upon death, automatic parental rights of children when one spouse dies. Perhaps a few of you, even without legal training, could name some of the more esoteric ones. Not even family lawyers, however, or even family court judges, however, could name them all. Yet despite this widespread ignorance, understandable though it may be, hundreds of millions of married Americans in “traditional” marriages benefit from these rights without even being aware that they possess them.
The people in this case were real people who also happen to be gay, and yet, they had to learn the hard way what rights married people do and don’t enjoy. It’s not necessary for purposes of this blog to go through each of those couples and each of their private pains, but understand that these were real controversies that effected people in a real way. This wasn’t just “a bunch of gay people” that decided to bring a general issue before the Court in a general way. Courts can’t take up matters unless there’s a “controversy” – a dispute – over something real and ascertainable. Theoretical disputes are not the proper province for any court, let alone the SCOTUS (the Supreme Court of the United States).
The states of Michigan, Ohio, Kentucky and Tennessee all have laws defining marriage as a union between a man and a woman – the “traditional” definition, speaking colloquially. Each of those couples in this case was adversely affected by application of those laws. They brought suit in their respective federal district courts and prevailed. Each of the matters then went to the Sixth Circuit Court, and, in a decision which consolidated them all, the Sixth Circuit Court reversed, which essentially meant that all of the affected people were back to square one; the states won. The appeal to the United States Supreme Court was the next step from the circuit court.
As I’ve blogged on many occasions prior to this day, both before and after we knew that this decision was “in the works,” I predicted that if the issue was ever to get to the Supreme Court, there’d be a 5-4, deeply divided decision. Those judges that were once viewed “conservatives” back in a more reasonable political day have now become “centrists” in order to balance the court’s ideologies. The “new conservatives”, of course, are those populated to the court by George W. Bush, and, to an extent, his republican predecessors in the Oval Office. The republican “bloc” of the SCOTUS is comprised of Justices Thomas, Scalia, Roberts and Alito.
Not surprisingly, those four justices “dissented” from the opinion of the majority which was offered by Justice Kennedy.
Justice Kennedy talked about the history of marriage and how it has changed over time. He was right to discuss it, because we’ve often failed to appreciate what “marriage” was when we discuss, in the “modern” era, what it is, or ought to be.
Those who glorify marriage as solely between a man and a woman are ignorant, either willfully or otherwise, to the difference between love and marriage, at least historically, from the perspective of developing civilizations. Watch any episode of the Game of Thrones and you’ll get a little taste of what marriage was often like for anyone of means or property (not just the nobility) throughout almost all of recorded history, across all continents. Marriage was very rarely about love. On those few occasions where marriage also happened to create or contain love, it was a happy coincidence celebrated by two people otherwise forced together due to political, economic, property or other realty-driven concerns.
Marriages across the continents and across time were arranged, forced, contrived, negotiated and “brokered”. Marriage was closely associated with procreation because procreation was seen as a way to pass property from one generation to the next without disturbance. Laws supporting and elevating marriage from mere sexual or romantic association were not driven by religious considerations; they were applauded and elevated by both the state and by religious movements as a way solidifying the mechanical and financial running of governmental or religious apparatus. It was a way to make sure things were done in a way that could be tracked, recorded, taxed and written down. Marriages were, in essence, a way of governing people and things.
It’s only been in the last 150 years or so that marriage has become less about those considerations and more about “love”. In the modern age of information (and I don’t mean the information age that we’re currently living in, I mean the last part of the 19th century and through 20th century), record keeping became standardized. Keeping track of people and what they did and how they did it became easier and more “normalized”. The need for marriage, on the part of government, began to recede. That’s not to say that the government didn’t still tax marriage or that it stopped charging fees for licenses, but marriage became more about what everyone since has considered it to be about; voluntary commitment to one another, through love.
Obviously, the world has also gotten smaller. It’s easier to go from place to place; it’s easier for cultures, religious groups and ethnicities to mix. As a consequence, more in the last 50 years than in any point in human history, people from wildly different backgrounds find themselves married. That’s not to say that there weren’t inter-ethnic marriages throughout history, but the simple difficulty of getting from one place to another made it much more likely that you’d marry someone “like yourself” than otherwise.
Nowadays, however, the internet is a few key strokes away. You can find someone not only from a different ethnic group or from a different religious background, but from another country, and be married PDQ.
For those people who think marriage has always been about love, therefore, understand that you’re purchasing a bill of goods sold to you by people who have something else that they want to sell to you, whether an opinion about this particular issue or romantic greeting cards or teddy bears for Valentine’s Day.
Love happens without marriage and, sadly and very clearly, if the divorce rate is any indication, marriage happens without love. So to the extent that either side has relied upon – you’ll pardon the pun – a “marriage” of love and the institution we refer to as “marriage,” disabuse yourself of that notion right now and understand that marriage, simply, “is what it is,” and that’s a financial, political and administrative reality as much as it is a wholly or romantic commitment; it depends on the people entering it.
As long as love remains all of those things, people need to be able to choose which of those things is the most important to them.
This is why Justice Kennedy thought it mete to talk about the history of marriage and, clearly to me, at least, why the conservative justices in their respective dissents were so critical of Justice Kennedy for doing so. The conservatives needed to be critical of Justice Kennedy’s discussion of marriage’s multiple dimensions because the conservatives, in order to be “right”, need marriage to be only what they and those for whom they speak claim it to be; a religious or “traditional” (religious) arrangement. The less marriage is about the interaction between a married couple and the state in its various incarnations (financial, property driven, insurance driven, etc.), the more upon soft ground the conservatives stand.
So Justice Kennedy talked about the various ways in which the right to marry has been supported by Constitutional interpretation through the federal courts.
In 2003, for example, the Supreme Court in Lawrence v, Texas overruled a decision from 1986, Bowers v. Hardwick, a decision that I studied in law school when it was new. In that decision, a Georgia statute criminalized homosexual sex. There was a criminal prosecution as a result. The 5-4 Court was unable to distinguish a way to suggest that any statute criminalizing an act of love between two consenting adults was wrong. The “states’ rights” argument prevailed.
As well, in 2012, the Court struck down the “Defense of Marriage Act” as unconstitutional.
Now, a word about “states’ rights.” The Constitution has been “amended”, but it’s often poorly understood what an “amendment” really is, if you’ve not been legally trained or you don’t remember your School House Rock. The Constitution, when it was originally written, contained no “amendments”. It was a very strong document centralizing a great deal of power in the hands of the Federal Government (the “state” as defined by the federal entity, versus the separate “states”). Because those who believed in the rights of states and individuals pressed for them, however, the Constitution was “amended” (added to, but nonetheless changed as a result) with 10 amendments that came to be called the “Bill of Rights”. These were all completed within two years of the official adoption of the Constitution. So the Constitution was adopted in 1789 and ratification of the Bill of Rights was in 1791, just two years later. This “Bill of Rights” has become so synonymous with individual liberty that it’s often forgotten that these were changes to the document as originally intended.
The importance of this can’t overstated. The Constitution is a document to which every lawyer (as well as judge, elected official, police officer, etc.) swears an oath. We must “uphold and defend” the Constitution, but whose interpretation do we swear to uphold and defend? The document is very old, yet the document was freshly written when it was already amended. Clearly, those who argue that the Constitution in its “original intent” must guide all modern decisions, no matter how many centuries have passed since, would do well to remember that the Constitution survived for an incredibly short period time before it was changed to reflect then prevailing attitudes.
Since the Bill of Rights, there’ve been a number of other amendments, but one of the most significant of these was the Fourteenth Amendment, an important piece of the majority’s decision in this case. The Fourteenth Amendment was passed right after the civil war ended, and followed directly upon the Thirteenth Amendment, which abolished slavery and involuntary servitude. The Fourteenth Amendment defined citizenship, but more importantly, contained what are called the “privileges and immunities clause”, the “due process clause” and the “equal protection clause.” These concepts are critical to understanding the relationship between the federal government and the states on the one hand, and the power of the states to act on their own as against their citizens without risking federal government intervention. In essence, these clauses govern a very complicated three-way relationship between the national entity, the state entities, and individuals.
According to the majority opinion, the Fourteenth Amendment extends to issues of personal identity and beliefs; this is most assuredly true. Moreover, and more importantly, the Court recognizes that the Constitution must be a “living and breathing” document that changes in its interpretation over time as the culture it is meant to serve changes. Obviously, fundamental liberties that were not extant at the time the Constitution was written must be “found” as the civilization continues to evolve. “Finding” these “fundamental” rights is admittedly a very difficult process, and one fraught with the risks of courts overextending their mandate. The job of a court is to “judge” the law. Those who decry the “finding” of “fundamental liberties” argue that when the court does such, it creates the law, a job reserved to the legislature.
This deep divide between those who argue that the Court can “find” fundamental liberties without overstepping its mandate on the one hand, and those who feel that anything not actually written into the original constitution should not be the subject of any federal court decision, is often referred to as a debate between those who espouse the “living Constitution” on the one hand those who argue only in favor of “original intent” or “strict construction”, on the other.
That divide was very much in evidence in not only the actual citations and language used in the opinion, but also in the emotional mood conjured, especially by Justice Scalia’s dissent, which can only be described as immature, unprofessional, vitriolic, self-serving, smug and arrogant, words not unfamiliar when applied to other of the Justice’s writings. Clearly, he’s deeply in love with the written sound of his own voice, and considers himself a “champion” of rigid, original interpretation of the Constitution. He spares no scorn when he takes issue with those who don’t agree with him.
Justice Kennedy, writing for the majority, held that the Fourteenth Amendment, both through its due process clause and through its equal protection clause, requires that marriage be extended to same sex couples in all states – the right to get married – and by all states (recognizing the marriage from another state), because to do otherwise would be to deny same sex couples the equal protection of the laws in all states. If you believe, as I do, that the Constitution must grow and evolve (bend, but not break) as the culture it serves grows and evolves, then this rationale makes sense. It was for this reason, for example, that the Loving v. Virginia case invalidated bans on interracial unions. It was why the Lawrence decision reversed the Bowers decision.
But in addition, Justice Kennedy articulated four important principles as to why the Fourteenth Amendment applied to this issue.
The first of these is that personal choice is inherent to individual autonomy. That was the basis for the Loving decision. The second was that two married people form a union “unlike any other”, which was the basis for the Griswold decision. The third was that the concept of equal marriage safeguards children and families”, draws meaning from the related rights of rearing children, procreating them and educating them, and suggests that without marriage, children will suffer “stigma” from being the children of “separate but equal” unions. Restrictive marriage definition laws in essence, harm and humiliate children. Powerful words. Lastly, the majority states that marriage is the “keystone of social order”. This is why states make it so important. Yet the definition of marriage between a man and a woman has nothing whatsoever to do with why marriage is the keystone of social order or why states make it so important. None of the rights and benefits of which so many married people are ignorant themselves derive from their opposite genders.
Justice Kennedy wrote an opinion which I admit I view through the lens of agreement yet I still feel it a powerful one. He speaks of marriage as being “transcendently important;” as a union through which “two people find a life that could not be found alone.” He writes that same sex marriage, absent this decision, would be “consigned to an instability that opposite sex couples would deem intolerable”.
In deciding that “now was the time” to finally resolve this issue, instead of allowing the “democratic process” or “public debate” to continue, Kennedy wrote that the “dynamic of our Constitutional system is that individuals need not await legislative action before asserting a fundamental right. The nation’s courts are open to injured individuals who come to them to vindicate their own direct personal stake in our basic charter.” He further writes that 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 establish them as legal principles to be applied by the courts.” He writes that this is why “fundamental rights may not be submitted to a vote; they depend on the outcomes of no elections.” Finally, he notes that the “nature of injustice is that we might not always see it in our own times.”
All of these points are well made and important, yet perhaps the most profound and significant quotation is the entirety of the final paragraph of the decision.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than they once were as some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past the death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilizations oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
So what did the conservatives have to say? I must tell you honestly and candidly that I see nothing of value in Justice Thomas’ decision. Justice Thomas has never struck me as a mighty mind on the SCOTUS. Nor do I think much of Justice Alito’s opinion, which for the most part echoes Justice Roberts’ better-written dissent. Standing alone, of course, is Justice Scalia’s smug venom, so let’s get him out of the way first.
Justice Scalia likes to sat suggests that he’s a “strict conservative” and interprets the Constitution by way of its original intent; that’s true of him, some of the time. Scalia is not an original intent guy all the time, because he’ll readily abandon the concept of the rights of states – something that he champions in his dissent in this case – when the right of the state to oppose a powerful corporate religious or conservative interest is at stake. When the states are trying to do the right thing for the power of individuals against the government, against corporations or against conservative moneyed interests, Justice Scalia ceases to be a strict constructionist and becomes a champion of federal uniformity. The power of the federal government, in Justice Scalia’s view, cannot and should not be checked against the power of the states as long as the federal power is to constrict or restrict the rights of individuals and uphold the rights of corporations and the wealthy. Yet when we reverse the equation, and it’s now about the protection of individuals’ liberty interests, suddenly, Justice Scalia remembers the states and becomes deeply solicitous of their rights.
He argues that the majority’s decision “robs the people the freedom to govern themselves”. He would have had the “democratic process” resolve the question Of course, in arguing this, perhaps intentionally or otherwise, he undermines the very need for the courts at all to resolve disputes of law. If Justice Scalia is such a fan of mob rule, then on deaf ears would fall Justice Kennedy’s admonition that some rights are not subject to the “vicissitudes” of public or political opinion, nor would he find comfort in the idea that justice is not always readily apparent in one’s own time. For Justice Scalia, the court need not exist, because the democratic process solves and resolves all.
I can think of a number of people who watched mobs in hoods with guns and torches who might argue against the idea that the majority should always hold sway. Do I really need to come up with a hundred, or five hundred or a thousand other examples of when allowing a “mob mentality” to resolve a sensitive or important issue of individual freedom is not always the way to go?
Justice Roberts did a better job in arguing that this decision was the product of “Court activism”. He said that the Court is not a legislature (correct). He says that five lawyers have ended a political process at which those advocating for equal marriage were winning, using the phrase that the “winds of change were freshening at their backs”. By this he meant to convey that if the process had only continued, total victory would have been achieved, but it would have been achieved, at least in his view, the right way.
Obviously, his issue becomes once again a debate between the Constitution as a living and evolving document which gives the Court the power to “find” individual liberties and order the states to uphold them on the one hand, and those who believe that if it’s not in the Constitution specifically, then it must be reserved to the legislative process, on the other.
He argues that the people emboldened by today’s decision and heartened by the victory for dignity and love (those are my words, not his) will find, in time, that they have lost something “forever” which is more precious, namely, the “opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause”.
I disagree with Justice Roberts, and feel that in the decades to come, this decision will be a landmark in the battle for America’s soul. Is America to be a country that continues to grow with the cultures of the planet, while always retaining the idea that it’s the place to come if you want freedom, success and opportunity? Or is America to be a country that constantly rants and rails against change, one which continues to insist, like a crying child, that things have to be the way they “they were” for always, or else we’ll have a tantrum?
Roberts finishes with his own brand of smugness, which can perhaps be forgiven, if for no other reason than by way of comparison to Justice Scalia, after reminding everyone who read his dissent that he has no personal stake in the validity of the cause. One obtains the impression that he himself personally has no problem with marriage equality and would have been satisfied, as a citizen and as a person, had the political process ended with universal victory. With this in mind, he suggests that those emboldened by the decision should “celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate availability of new benefits, but do not celebrate the Constitution. It had nothing to do with it.”
The conservative justices, aside from being simply wrong about why they disagree with the majority, are also predicting a future distress that simply isn’t going to materialize. They’re arguing, apparently, for those poor souls in future times who’ll look back on this day and see in this decision the unwarranted acquisition of power by a tyranny of nine old folks in robes that somehow bespeaks doom for the American political process and for its civil and political life.
I’ve been watching CNN ever since the decision hit. I predicted in past blogs that when the decision hit, it would cause a schism in the Republican Party that would, in the long run, be good for the party. It turns I was right. Republicans polled about the decision who are over 50 years old are opposed to it about 60% to 40% or so. Those under 50 are in favor of it by as big a reverse margin or bigger. I’ve heard republican political commentators under 40 argue, some so passionately that one came to tears, that it’s a relief that this part of what they consider to be an embarrassment to the Republican Party is over. One obtains the impression that these are the people in charge of guiding that party in the future, who will give the religious right wing nuts their walking papers and tell them where the tea party headquarters are. Obviously, the Republican national identity is about to be put to the test. The candidates have a choice as to how they see this opinion and how they talk about it. Some have already drawn their battle lines and plan to pander to the religious right using the new buzz words (the ones I coined the other day when I first reacted to the decision) like “religious liberty” and the like. These Orwellian terms (meaning their true definition is opposite of that claimed) are meant to essentially empower individuals to impose their religious beliefs on others, something that the conservative dissenters clearly wanted to see continue.
I’m going to watch this debate with interest, just as I’ll watch the Democratic Party to see how intelligent it is about incorporating this decision and its wide ranging social consequences (all to the good) into its own debate.
So how do I, the straight, married, civil rights lawyer feel about the decision? I turned on the news when I got into the office, having heard the first mentioning of it on the radio. I watched protestors let on to the courthouse steps – something that never happens – and I watched them begin to sing the Star Spangled Banner. They sang it with passion, and they sang it with feeling. There’ve been times in my life when I’ve been struck, deeply and emotionally, by a rendition of our National Anthem. As much of a hard bitten cynic as I sometimes consider myself to be, there have been those moments where, if tears aren’t exactly evoked, my eyes get a bit misty.
Listening to those people celebrate the victory of love, of dignity, of America having a soul whereby we stand by our promises and the best expression of ourselves, I got emotional. I’ll never know, first hand, how those people felt, and I’ll never know how the winners feel.
But I do know, at least as certainly as we can ever be about the future, that no one I love and no one I leave behind when I’m gone will ever have to know the pain of Mr. Obergefell or his fellow petitioners again.
And for that, this is a landmark day on the journey to justice.