Justice Kennedy and Same Sex Marriage – Part 1 of 3

It’s been about a month since the Supreme Court issued its decision in Obergefell v. Hodges in which it held that the Constitution protects the right of marriage for same sex couples. I read the decision immediately after it was published and I’ve been contemplating what to write about it since then.   Journalists have already written much about this opinion and I’m certain that the future will bring even more commentary by formal legal scholars. There is much about this opinion and the dissents that I find intriguing and worthy of discussion. In many ways, I see a reflection of the different perspectives of the American people in the writings of the Supreme Court Justices. Because of the complexity of the various approaches by the jurists in the opinion and multiple dissents, I’m going to divide this into 3 parts in order to keep this from becoming too lengthy and to better focus on the writings of the individual justices.

The 5-4 decision is the narrowest possible victory for the petitioners and the split decision is reflective of the societal split and legal difficulty regarding the topic of same-sex marriage. My experience has been that, at its best, the intersection between law and family is difficult. The law seeks certainty and predictable outcomes. It favors statutes and rules that can be applied uniformly to all that appear before a Court. Families and relationships are anything but formulaic. What is just and proper in one family, or relationship, might not be in another. However, there is a tradition among judges that wherever possible they will decide a case on the simplest basis and in the manner that leaves the law as untouched as possible. Despite all the talk of this case as being a historic groundbreaking decision, I believe the Court kept to this tradition, as I will explain below.

Justice Kennedy, author of the majority opinion, begins the opinion by examining the history of marriage. He notes that marriage has evolved throughout history and “has not stood in isolation from developments in law and society.” I feel that he treats the subject and the people involved with a great deal of compassion. He humanizes the case by reciting the backstories and struggles of the petitioners. The case is actually a consolidation of cases from different states involving 3 different couples, each with a unique and compelling story of the harm they suffered from denial of their request to marry or have their marriage recognized by their home state. This humanization of the issue continues throughout the majority decision with language such as:

“Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

It is important to remember that the role of the US Supreme Court is one of Constitutional Interpretation.   It is not a trial Court that decides issues of fact. Its fundamental role is to be the final decision-maker on Constitutional issues. Therefore, it is appropriate to ask, what does the Constitution have to say about marriage, a historically religious ritual often performed by clergy? After all, we don’t hear of issues regarding baptism or Bar Mitzvahs coming before the Court.   On the other hand, the marriage relationship, as is noted in the opinion, is a major part of American law with many benefits and privileges being granted through law to married couples. It is this dichotomy of marriage as both religious and secular that makes it such an emotionally charged subject. Interestingly, religion is mentioned in the Constitution, but the word “marriage” doesn’t appear even once in the US Constitution.

One might expect that the Court would decide this issue on the basis of religious freedom. That is, if a clergy person will marry you, then by virtue of your right to religious freedom, the state must recognize your marriage. However, the Court, I believe very wisely, didn’t base its decision upon religious freedom. To have decided the issue on the basis of religious freedom would have elevated clergy to the role of legislating marriage from their pulpits and created a de facto violation of the separation of church and state.

The Court decided the issue based upon the Due Process and Equal Protection clauses contained 14th Amendment of the Constitution, which is familiar territory for the Court when deciding issues of family life. The Constitutional text that the Court considered is:

“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.”

While marriage is not a mentioned in the Constitution, the Supreme Court long ago determined that marriage is a fundamental right that must be highly protected against government intrusion. The Court has used this reasoning in prior cases to conclude that state laws restricting marriage based upon race, prohibiting marriage for inmates, laws restricting the right of marriage for fathers with unpaid child support were all unconstitutional. The opinion plainly states that the Court does not see itself as creating a new marriage right, but as affirming a deepened understanding of an existing right. Justice Kennedy writes:

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

In other words, the concept of liberty and equality in the United States is not static, but changes as our understanding and insight expands. The Court gives an excellent example of this concept of emerging understanding by discussing the abolition of the laws that treated married women unequally known as the “doctrine of coveture”. Historically, married women in the United States lacked legal capacity, they were considered subjects of their husbands, and all their property belonged to their husbands. Contracts by married women were unenforceable unless her husband ratified the contract.  Such laws persisted in our country up through 1981 when the US Supreme Court declared them to be unconstitutional. As noted by the Court, if the Court had not looked to emerging insights of liberty and equality, married women in the United States would have remained subjects of their husband.

One interesting aspect of this decision that I expected to see but wasn’t included, is the application of the “strict scrutiny test”. In prior cases involving fundamental rights, the Court has utilized an analysis known as “strict scrutiny”. In this analysis, once the Court has found that a fundamental right is at issue, the State then has the burden of showing that there is a compelling state interest at stake to justify the intrusion upon the fundamental right and that the state action is narrowly tailored to further the compelling interest while limiting the intrusion upon the fundamental right. For example, if a state wants to remove a child from a parent it is infringing upon the parental right of privacy and it must show a compelling interest such as protecting the child from abuse. The removal must be no more than is necessary to protect the child, thus if supervised visits can be done safely, they must be allowed. I am not sure why the Court omitted the strict scrutiny analysis in this case. Perhaps, it felt this was unnecessary given the citation to prior cases.

Having found that marriage is a fundamental right that cannot be denied to same sex couples, the Court then discusses why this issue cannot be left to the voters through the democratic process. I will discuss this issue further when I address the dissent filed by Justice Roberts who argues this point quite strongly.

I believe Justice Kennedy could have ended the decision at this point, but I suspect he understood the controversial nature of the decision and the need to thoroughly explain the reasoning and scope of the decision. Just before ending, he addresses the issue of same-sex couples whose marriages are valid in one state, but not recognized in another. He describes this situation as “the most perplexing and distressing complication[s] in the law of domestic relations” and then describes the hardship and risk this creates for same sex couples. He concludes his discussion of that topic by stating “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

There is another aspect to consider when analyzing Justice Kennedy’s writings.  That is, whether or not Justice Kennedy is writing for the present or for future generations.  The US Supreme Court has too often been on the wrong side of history and justice when it comes to issues of equality and civil rights.  The Court spent a generation upholding and defending segregation.  It upheld internment of Americans with Japanese heritage during Word War II.  Such decisions have not enhanced the historical reputation of the Court as a place where justice was found.  Justice Kennedy clearly writes this opinion from a position of enlightened moral authority.  I suspect that he has a vision of the future and he writes to bring the Court into alignment with the vision.

In the closing paragraph, the opinion returns to the aspirational language seen at the beginning. The language is much more akin to that used in a marriage ceremony than what is usually seen in a Supreme Court opinion, but I think it fits well with the overall compassionate tone of the opinion. I believe this paragraph will be of great value to future generations and I would not at all be surprised to see it become a part of same-sex marriage ceremonies. I think that, even if you read nothing else of the actual opinion, the final paragraph is well worth reading:

“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 once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past 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 civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

 

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