Mass Murder in America – Looking Beyond Legal Solutions

Until a couple of days ago, I wasn’t sure what I was going to write about this week. However, the tragic gun deaths of nine students, and wounding of nine others, at an Oregon college is a topic that deserves attention. Predictably, this event has reignited political debates regarding issues such as gun control and allowing students to carry firearms on campus. While I think these are important discussions, and I support gun control legislation, I’m not convinced that either gun control or further proliferation of firearms will resolve the problem of mass shootings.   I say this because on many levels these events are more than simply legal problems and failure of legislation.

I recognize that law has its limits. We cannot seek to resolve our social problems solely through criminalization and regulation. I believe we need to take a closer look at what social forces are driving these events and consider how we can create change that stops the creation of people who are driven to commit mass murder.

When one looks back that the majority of mass shootings in our nation we see a recurring profile of the individuals who commit these violent acts. The group is exclusively male, most often white, alienated, unemployed or underemployed, and exhibiting symptoms of untreated mental illness. These are not professional criminals, gang members, or individuals with histories of long-term involvement in radical organizations, although they may take up a cause to justify their actions.

I would like to focus upon the issues of alienation and untreated mental illness because I feel that these two areas are ignored in most discussions. Human beings have a strong drive for connection. We are not solitary creatures. In fact, social isolation has been compared to smoking and obesity in terms of the magnitude of its impact upon our health. Yet we live in a society where the social fabric is decaying, and with it, opportunities to find social connection. More and more of our professional and personal lives have moved into the digital realm. I was recently talking with some young people about job hunting and I was encouraging them to go to the employer and talk with someone in person whenever possible as part of their job hunting strategy. I was surprised when they told me that this was no longer possible with most employers and that for grocery stores and other retail entities all job seekers are directed to the Internet. As I wrote in an earlier posting, social institutions of all sorts are declining in membership. I would argue that even where membership is steady, the social life of many institutions has declined tremendously in the past two decades. I remember years ago when the holidays of Chanukkah and Sukkot in my local Jewish community meant multiple invitations to parties and dinners. In recent years such invitations have become increasingly rare to the degree that I am surprised when one is extended.

Alienation creates worse health outcomes, not just physically, but also for mental health. We are not prepared to respond to  the increased mental health needs arising from increased alienation. The United States’ mental health infrastructure is completely inadequate and  is getting worse by the day. We do not have the providers and we  haven’t funded the research needed to deliver effective evidence based treatments. Even for those who have the financial resources to pay for care, it’s often simply not available or the quality of care is poor due to inadequate training of the provider.

Untreated mental illness often brings people into the criminal justice system. I remember when I was doing contract nursing and I was sent to work in a local prison. I was stunned at how a majority of the inmates’ medical records showed the same profile of untreated mental illness; a history of childhood abuse or neglect; low IQ; and untreated addiction. Is it any wonder that the largest provider of mental health services in the State of Florida is the Department of Corrections? However, this also says that, as a society, we’re not committed to the prevention of crime and destroyed lives, only to reacting to the damage they cause.

One last story and I’ll close. When I was a law student I worked on a clemency petition for a young woman who, at age 13, was sent to adult prison in Florida for 9 years following the home invasion robbery of her Grandparents’ house. This child, and she was a child until the state of Florida stripped her of that status, had been evaluated by two mental health experts a few weeks earlier following a violent outburst. The mental health experts both recommended immediate inpatient treatment for her. Nothing was done, her behavior continued to escalate, and the State of Florida decided that rather than mental health treatment she was a criminal and made her the youngest person in the Florida adult prison system. It should be noted that her escalating violence was associated with her mother’s abandonment of her. During her 9-year prison sentence, neither her mother nor her grandparents ever visited her once. The recommended mental health treatment was never provided to her. I argued her clemency petition to then Governor Jeb Bush, who denied it. I guess he just figured that stuff like this happens.

In closing, I don’t believe that we’re helpless in the face of this problem.  As individuals, we can work to decrease alienation in our communities by simply going out into the world.  I know some will disagree with me, but a digital connection is not the same as being in the presence of a live person.  We can lobby for mental health research and treatment funding, not simply because of this issue, but because it creates justice in the world.   If we can do these things, our lives will all improve.

 

 

Is Kim Davis A Truly Willing Martyr?

I wasn’t planning to write a blog post about Kentucky Clerk of Court Kim Davis and her refusal to issue marriage licenses to same sex couples. I don’t see the situation as being especially complicated or interesting from a legal standpoint. I feel that her recent jailing was highly predictable. On the surface, this situation seems to be little more than a woman who seeks a special exemption for herself from  the  performance of her elected duties on the basis of religious belief. However,  when reading an ABC news report regarding her testimony during the contempt hearing, something jumped out at me that makes me suspect that this situation is  more complicated and I’d like to discuss what I think might be going on.

ABC news reported: “’I did a lot of vile and wicked things in my past,’ Davis said when asked about her life before becoming a Christian in 2011.” I think this is an important statement that tells us a lot about how Mrs. Davis sees herself and the role her religious identity plays in her life. Clearly, Mrs. Davis carries a great deal of shame about prior decisions in her life and she sees her religious conversion as a return to worthiness. She’s seeking redemption, a way to undo the mistakes of her past, through her willingness to be a martyr.

As Jewish person I can get my head around this idea of redemption. People who follow my religious tradition are currently in the month of Elul, which is a time of reflection in preparation for Rosh Hashanah and Yom Kippur, two holidays in which there is great focus on redemption and repentance. Judaism recognizes two forms of redemption. One form of redemption involves healing the relationship between the individual and G-d, the other form involves healing the relationship between ourselves and other people, especially those whom we may have harmed. I believe that redemption is a universal human need. We all make mistakes in our lives and sometimes we harm others as a result of our mistakes.   It is important that we find some sort of mechanism that  allows us to repair whatever damage we may have caused and to move forward without carrying endless guilt.

It appears that Mrs. Davis believes that having even the most remote connection to same sex marriages will impair her relationship with G-d, and that she most prove her love and gratitude to G-d through self-sacrifice i.e. martyrdom.  I can’t help but feel that this martyrdom is rooted in an unhealthy degree of self-righteousness that is contrary to the spiritual renewal of redemption that she seems to be seeking. During her conversations with the same sex couples to whom she’s refusing marriage licenses,  her facial expressions are, at best, condescending and dismissive of their emotional pain.

Is there evidence to suggest that she’s being manipulated? There certainly is a crowd of opportunists surrounding her, for example, politicians like Mike Huckabee, who is championing her cause as  judicial tyranny and as a war on Christians . According to CNN, Ted Cruz recently issued a written statement that this is an attempt to drive Christians from public office. I also wonder about the religious education and guidance she is receiving from the clergy and elders of her Church, who generally have no formal religious training, do not attend any seminary, and are exclusively male. Is her situation different from those who, while seeking religious purpose and redemption, are manipulated into being suicide bombers or jihadists by those seeking political and religious power and control?

Politicians have no obligation not to exploit people or their causes. Likewise there is no legal duty of loyalty, or even competency, for a clergy person. However, there are ethical obligations for lawyers, and I have to wonder what role her lawyers may be playing in promoting her martyrdom? As an elected official involved in a dispute regarding the policies and procedures in her office, one might expect that she is represented by the County Attorney or a law firm that routinely represents elected officials. This is not the case for Mrs. Davis, who is being represented by lawyers through Liberty Counsel, a group that describes its purpose on its webpage as, “to preserve religious liberty and help create and maintain a society in which everyone will have the opportunity to discover the truth that will give true freedom.” The Southern Poverty Law Center has labeled Liberty Counsel as an anti-LGBT hate group. According to the Southern Poverty Law Center, Liberty Counsel has championed causes such as removing hate crime legislation. The Liberty Counsel website contains a Marriage Solidarity Statement in which they claim “the Supreme Court has no authority to redefine marriage and thereby weaken both the family and society.”

Is there a conflict of interest between Liberty Counsel’s agenda and providing competent legal advice to their client, Mrs. Davis? That is, can Liberty Counsel competently advise  Kim Davis regarding her best interests, or is it about promoting their political agenda with her being a martyr to the cause? This important question was raised in a recent Slate article in which the columnist observes:

“Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks).”

A lawyer’s duty paramount duty is always to the client. The question that arises in many cases, such as Mrs. Davis’ where a third party is providing funding, is who is the client? Are her lawyers working for the “ministry”, which has its own agenda, or for Mrs. Davis whose interests might align in some ways, but in other ways might be at odds with those of the ministry? Such a problem is not unique in the law, insurance defense attorneys sometimes face a similar dilemma, especially when the insurance company wishes to settle or contest a claim and the client being sued does not. However, in cases involving insurance defense lawyers there is some protection for the client in that if an insurance company refuses to settle a claim and the client is forced to trial and loses, the insurance company then has to indemnify the client for the full amount regardless of the policy limits. In Mrs. Davis’ case, the stakes are not simply monetary and it’s not Liberty Counsel who is going to jail or who will be burdened with a record of contempt, it is only Mrs. Davis. I note that while Liberty Counsel is standing in front of the national press promoting its cause of suppressing rights for gays and lesbians, no court has found merit in any of the claims it has raised so far, and their client is sitting in a jail cell.

There is another ethical obligation of an attorney to keep in mind when advising a client such as Mrs. Davis. As a lawyer I am not permitted to advise my client to disregard or violate a Court order. I can agree with my client that an order is unfair or unjust, but I cannot counsel a client to violate a judicial order. This is my obligation as an officer of the Court. I must give respect to judicial rulings, even when I don’t agree with those rulings. I am free to challenge them on appeal, but I am not free to advise my client to disobey those rulings. As an outside observer of this case I have no idea what  discussions have taken place between Mrs. Davis and her lawyers, but I’m left wondering what counsel she is actually receiving regarding complying with the Judge’s order? Is a client well served by lawyers whose focus may be their interpretation of Biblical law rather than the secular law of the Court? I think that an argument can be made that, unless you are able to encourage your client to follow the orders of the Court, you are not able to render competent legal counsel to the client.

I don’t agree with Mrs. Davis’ argument that her religious beliefs permit her to refuse to allow her office to issue marriage licenses to same sex couples. I feel that as a matter of law it fails on many levels. However, I’m really wondering whether or not her need for redemption is making her susceptible to the manipulation of those who have surrounded her in this cause. Of course, in the end, it will be Mrs. Davis who will bear the costs.

 

Ashely Madison: Are Journalists Trafficking in Stolen Property?

The news media has been abuzz recently with stories about the hacker data theft from, Ashley Madison, a website, that focuses on personal ads for married people in search of partners for affairs. Hackers stole the membership list of the website, then threatened to publish the membership list if the owners didn’t shut down the website. When the owners refused to take down the site, the hackers then published the membership list on rouge server sites. Many of the news stories and blog posts regarding this theft and attempted extortion directed readers to the actual data so they could search the stolen data for member email addresses and other identifying information. This raised several questions for me regarding the legality and potential liability of the news media for their part in the dissemination of the stolen data.

Many of the Facebook and blog posts about the publication of the Ashley Madison data celebrate the hacking of the site, extortion of the company, and the publication of the membership list. The attitude is that members of the site are all dishonest cheaters who deserve to have their privacy invaded and to be held up to public scorn and ridicule. I think this analysis is simplistic at best and dangerous at its worst. Consider the possible outcome of a jealous husband, or wife, becoming enraged at the now public exposure of their spouse’s infidelity then resorts an “honor” killing of the other spouse. It’s not such an improbable outcome given the fact that, according to the New York State Office for the Prevention of Domestic Violence, 1/3 of all homicides of female victims are committed by the woman’s intimate partner.

Beyond the fact that disclosure of the data may create a physical danger, I believe that, when a journalist or blogger links to the stolen data, the journalist is then engaged in the act of trafficking in stolen property. The data that was stolen was the customer list of the corporation that owns the website. Customer lists have value to businesses, are considered trade secrets, and as such are considered company property.

In the State of Florida, as in most, if not all, states, it is a crime for a person to: “appropriate a trade secret to his or her own use or the use of another” and a trade secret includes in its definition a “list of customers” Fla. Stat. § 812.081. Additionally, it is also a crime for a person to traffic in stolen property. Trafficking in stolen property means to “sell, transfer, distribute, dispense, or otherwise dispose of property”.

Therefore, I believe a strong argument can be made that journalists, who link to the stolen data in their articles, knowing that their readers will then access the data, and who the journalist has often encouraged to search the data, have engaged in the trafficking of stolen property.

However, many times journalists rely upon leaks of confidential information as sources for their stories and that many of these stories are often of great national importance such as the pentagon papers, Watergate, and the recent Snowden disclosure of domestic spying.  Historically, the Courts have protected the use of these materials in cases such as the New York Times vs. Sullivan in which the Court declined to prohibit the New York Times from publishing a story about the leaked pentagon papers disclosing confidential information about the war in Vietnam. However, I think there are important differences in those cases from the Ashley Morgan hack.

First, the disclosures involved in the prior cases all involved disclosure of information describing the content contained the documents. The cases did not involve the full publication of the papers. In NYT vs. Sullivan the story was the summation of thousands of pages of documents, but not the documents themselves. In other words, the focus of the reporting was the story contained within the documents, not the actual documents themselves.

Secondly, the disclosure, through the publishing of the link, of a customer list containing the names of otherwise unknown private citizens who, whether one approves or not, were engaged in perfectly lawful private behavior is tabloid journalism at it’s best. Is the data being disclosed to inform or is it simply titillating gossip? Is there an important first amendment right at issue here, or is this merely an invasion into the private lives of private people for no legitimate journalistic purpose? Does the public have a right or a need to know who may have accessed the website?  Does applying the first amendment freedom of the press right in this case and other similar circumstances create a chill over the larger population’s exercising it’s right to free speech, right of association, privacy, and liberty rights?

The case for trafficking in stolen property by journalists in the Ashley Madison case revisits an unresolved issue in the recent case involving free-lance journalist Barrett Brown. Mr. Brown was recently sentenced to 63 months in federal prison following his arrest on charges or trafficking in stolen property after he posted a link to a stolen document in a chat room. Many saw the trafficking charge as an unconstitutional infringement upon the 1st Amendment right of free speech and a strong legal defense was planned. However, that charge never went to trial when Mr. Brown pled guilty to other charges such as threatening FBI agents and the government dropped the trafficking charge.

As of today, the legality of journalists sharing links to stolen data remains unresolved in the law. I believe that journalists have a protected right to comment on stolen data that is brought to them, they can describe the contents and speculate regarding the impact upon public policy or other matters of larger public concern. However, I don’t think the law protects a journalist who transfers the data itself to third parties.   I think that it’s hard to argue that transfer of private data either directly or by way of an Internet link is a form of speech. However, I expect that the law will have to closely examine this issue and that we’ll see more of this in the future.

 

 

 

Scalia and Thomas Dissents – What about Dignity? Part 3 of 3

In this final installment of my examination of the U.S. Supreme Court decision regarding same sex marriage in Obergefell vs. Hodges I examine the dissents of Justice Thomas and Justice Scalia.

Justice Scalia concurs with the dissent of Justice Roberts, but felt that it was necessary for him to write separately “to call attention to this Court’s threat to American democracy.”

Justice Scalia is quite famous for his scorching and snarky dissents in which he often resorts to ridicule of the other justices and their reasoning. In this dissent he doesn’t disappoint us in the least.   His opening is similar to Justice Roberts’ dissent in that he tries to create distance between his “personal feelings” regarding same-sex marriage and his opposition to finding a right to marriage for same sex couples. Justice Scalia writes:

“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes…it is not of special importance to me what the law says about marriage.”

In other words, like Justice Roberts, he’s trying to insulate himself from being judged homophobic by history. Having assured everyone that he doesn’t hate gay people, Justice Scalia then becomes quite melodramatic in his dissent. He basically accuses his fellow justices of destroying American democracy and taking over the other branches of government.

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

In classic Scalia fashion he accuses his fellow justices of “robbing the people of the freedom to govern themselves”. His argument throughout his dissent is really two-fold: 1.) This is a political question with no civil right involved.  2.) Marriage is a matter for the States and does not involve a constitutionally protected liberty interest.

It is interesting to note that although Justice Scalia criticizes the majority for failing to present a more developed legal argument, his dissent contains only the most minimal citation to judicial precedent. He repeatedly returns to the fact that only nine Supreme Court justices get to decide the case. However, he doesn’t acknowledge the dozens of District Court and Appellate Judges who, during the decisions giving rise to the present case, repeatedly reached the same outcome as the majority in this case. Indeed, only a small number of Judges have found that same sex marriage is not a Constitutionally protected right.

One very interesting portion of his argument arises during his criticism of his colleagues and the institution in which they serve.  Justice Scalia brings up an interesting, and I think important, observation regarding the lack of diversity in today’s Supreme Court.  “The Court,” he writes:

“consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

Actually, Justice Scalia is somewhat misleading in this statement.  His colleague and friend, Justice Ginsberg is a graduate of Columbia Law School, although she did study at Harvard before transferring to Columbia.  In many ways, this is a somewhat odd attack on what many feel is the most diverse Court in our history. Consider that 3 out of the 4 women who have ever served on the Court are currently serving. There is a Black male justice, of which there has only been one other. As far as we know, there are no homosexual Justices (Although it does appear that the only person nominated from my hometown of Tallahassee, George Harold Carswell, may  be the only non-heterosexual ever nominated). We have the first and only Hispanic Justice. He is correct that the Court lacks religious diversity. All current justices are either Catholic or Jewish, although historically 91 of the 112 Justices who have served on the Court come from a Protestant background. The average age of our current justices is approximately 70 years old. The lack of diversity in legal education is also concerning.

This commentary on diversity becomes more intriguing because later in the dissent Justice Scalia cites to the wisdom of a group of historic Judges who are hardly a diverse group at all:

“Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly”

Judge Race Religion
Thomas Cooley White Protestant
John Marshall Harlan White Protestant
Oliver Wendell Holmes, Jr. White Unitarian
Learned Hand White Protestant turned agnostic
Louis Brandeis White Jewish
William Howard Taft White Unitarian
Benjamin Cardozo White Jewish
Hugo Black White Protestant
Felix Frankfurther White Jewish
Robert Jackson White Protestant
Henry Friendly White Unknown

In many ways that’s the irony of Justice Scalia’s dissent. He utilizes diversity as a weapon to criticize, but he’s not at all bothered by the lack of historic diversity in our legal system to whose precedents he believes we should rigidly adhere. He doesn’t seem to see diversity as something that is protected by the Constitution. Yet there is an uncomfortable truth to Justice Scalia’s argument that the Constitution doesn’t create rights to promote fairness and justice for a diverse society. Our founding fathers and ancestors did not see justice and fairness in ways that we do in modern times. Consider for instance that State laws prohibiting contraception for married couples were lawful until 1965. It wasn’t until 1981 that we got a woman on the US Supreme Court. Our nation didn’t even prohibit segregated schools until 1954. As recently as 1986 the Supreme Court upheld laws criminalizing gay sex. I can’t help but wonder if Justice Scalia thinks we should be bound to the past until such time as the electoral process provides an opportunity to vote for change?

Justice Scalia’s dissent argues this limitation of Constitutional protection by claiming that the Court should refrain from looking to the spirit, the intent, and the promise of the Constitution. The focus should remain only on the text. Justices should not read into the text any rights that are not explicitly stated. He believes that it is through constitutional amendment and not judicial interpretation based upon experience that change should occur. While I do not think this perspective is without merit, I don’t believe that for many oppressed and minority groups his perspective offers a realistic hope of justice and freedom from oppression by the majority group. Other than women’s suffrage and abolishing slavery, our nation has never once amended the Constitution to create a new right or to offer any group protection from any form of oppression.

Lastly, to conclude this blog post, we turn to the dissent of Justice Thomas who begins his dissent by rejecting the majority’s concept of liberty. He writes:

“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”

Justice Thomas utilizes a definition of liberty that was written in 1769 in an analysis of the laws of England, the very nation we broke away from in pursuit of freedom:

“the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”

He then conducts an analysis of liberty, as it was understood under the British Magna Carta. His reasoning for doing this is his belief that this was the understanding of liberty possessed by the framers of the Constitution. He spends a great deal of time in his exploration of “liberty” and seems willing to expand it to include freedom from government action. However, he claims that even with this expanded definition he still rejects the right of same sex marriage because he sees the right of marriage, along with the governmental benefits, to be about an entitlement to governmental benefits.

Justice Thomas points out that the petitioners are free to have whatever form of religious marriage they wish, but that in his view the case is about their seeking governmental recognition of their marriage and the governmental benefits that flow from that recognition. These may be valid points, but Justice Thomas doesn’t in any way address, other than by virtue of tradition, why the government can restrict its recognition of marriage to only one man and one woman. I’m left wondering, under Justice Thomas’ perspective, when can the government create benefits that are entitled to some people and not others? Could we create a benefit that is arbitrarily for men only, for people of color only, only for Catholics, etc.? If my understanding of Justice Thomas is correct, then he believes such would be allowed.

The final issue that comes up in Justice Thomas’ dissent is without a doubt the most bizarre piece of judicial writing that I have ever read. Honestly, I was shocked when I read it and it still seems like something you’d read in the Onion rather than a US Supreme Court opinion.

Justice Thomas begins discussing “dignity” and states that the US Constitution does not protect it. He claims that because dignity is innate to all human beings it cannot be impacted, positively or negatively by governmental action. He writes:

“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.”

I’m at a complete loss as to what to say about this other than it’s got to be one of the most ridiculous and callous statements ever written by a Supreme Court Justice. In my opinion, the right to vote, due process, freedom of speech, and protection against unlawful searches and seizures are all rooted in a fundamental respect for the dignity of human beings. To view our Constitution as providing nothing more than a framework for the function of government to me is to strip it of articulation of our values. This ultimately denigrates the very nature of the document and the nation that looks to it for direction. I’m simply appalled.

In closing, this decision and the dissents, apart from their important impact upon American life, reflect many of the challenges and conflicting perspectives we face as our nation moves into the 21st century. In some ways, and it’s strange for me to admit this, Justice Scalia may have some valid points when he argues that rather than looking to our Courts to create new rights, we should be amending the Constitution. Consider that ours is the oldest Constitution is use in the world today and we’ve rarely amended it. With the exception of women’s suffrage and the abolishing of slavery, we’ve not amended it to create any new civil rights or end oppression in over 200 years.   We are utilizing a document that pre-dates the industrial revolution, any form of electronics, and mechanized transportation to run what is perhaps the most complex civilization in the history of the world. The question that will remain after this case is to what degree do we reinterpret and extrapolate to find meaning and direction, and at what point do we simply say that it’s time to amend or rewrite? My thought is that not do either of these things will allow us turn a blind eye to injustice and inequality as these concepts emerge in the modern world.

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.”