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.”


The Labels We Choose

The case of Rachel Dolezal, the NAACP leader who is accused of lying about her race, has generated a lot of news headlines. It touches on a lot of hot-button issues in American culture and I find it a very interesting story. I’ll leave to others to decide whether or not Ms. Dolezal was right or wrong in her actions. It does appear that there is significant evidence that Ms. Dolezal often exaggerated or simply made-up facts about her life to further the identity she created for herself. My interest isn’t so much in passing judgment on Ms. Doezal, but on understanding her journey and how our society reacts to it, and what does it mean for my life?

To me, the fundamental question is whether or not our identity is forever bound to whatever group we happen to born into? Are characteristics of race, ethnicity, gender, and religion permanent fixtures in our lives or can we choose?

A parallel news story currently happening is that of Bruce/Caitlyn Jenner, the former Olympian who has now adopted a female identity. I believe that one can argue quite persuasively that gender is rooted in biology as evidenced by different X and Y-chromosomes that distinguish male and female. Yet, we know this is not the entire story for some people. Some people, such as Caitlyn Jenner, have a need to live their lives the opposite gender from that found in their biology. I don’t know what it feels like to have this desire, but I believe that the needs of such people should be respected and that they are entitled to pursue whatever life will make them happy. I also know that many would argue, and I would agree, that it would offensive and disrespectful to refer to Caitlyn Jenner as male or use male pronouns in addressing her. The decision of a person who is not genetically female to live as a female is becoming accepted and respected as a true expression of the person and evidence of courage.

Race is not an all or nothing matter and is arguably much more fluid than gender is. Granted there are some genetic racial markers, but we also know that all humans, regardless of their race, share the same set of genes. We also know that many people, including President Obama, have historic and genetic roots in more than a single race. Genetic research has shown that approximately 4% of “white” Americans show evidence of “black” ancestry in their DNA. It is interesting to note, and I believe it’s instructive as to how our society thinks about race, that President Obama is frequently referred to as the first “Black” President, when in reality he is equally “white”. Sadly, “white” both historically, and for many in modern times, in the United States has been given a very narrow definition and more value than it warrants. Our history is that classification by race has been a tool for oppression and disruption of unity among large numbers of people in our society. The rules of race, like those of gender, have been strictly enforced. Those who tried to cross the lines often faced the severest of sanctions. In light of our collective experience with the injustice this has created does this perspective make sense anymore? Why is it offensive for a person to move across racial groups or to choose to live in more than one group? If a child grows up with black siblings or parents, yet has white skin, is that child dishonest to claim a black identity?

For me, this idea of choosing identity and alignment is both interesting and deeply personal. I am a Jew by Choice, meaning that I wasn’t born Jewish, but made a decision to convert more than 20 years ago. Conversion to Judaism is a religious act that I think is most strongly defined by a commitment to cast one’s lot with the Jewish people. In most settings it is accompanied by at least a year of study involving subjects ranging from basic Hebrew, Jewish Holidays, and Jewish History. However, I have found that no matter how much one studies, no matter how religiously observant one becomes, or identified with the Jewish people, there will always be those within the Jewish community who refuse to accept the convert as Jewish. Their arguments usually focus on issues such as the legitimacy of the Rabbi who performed the conversion or the technicality of religious observance of the convert. I have personally encountered this and as a result have actually undergone 3 conversion ceremonies to try to satisfy the predilections of various Rabbis who came to my community. However, it isn’t just Rabbis who create challenges, individual Jews are sometimes less than accepting. For many of these people, Jewish identity and the purpose of Jewish community involves a reconnection to the lives of eastern European grandparents, Lower East Side tenement life, or other cultural memories that I know little about. On the other hand, and much more importantly, I have found that the vast majority of people in the Jewish community have welcomed me with open arms and created for me a sense of family that simply didn’t exist for me before. However, I am often reminded of Yisrael Campbell, who like me has also gone through 3 conversions, in his film about his conversion to Judaism “Circumcise Me” where he asks:

“When did I become Jewish? The first time I converted, the second time, the third time? Have I always been Jewish? Am I still not Jewish?”

I have asked myself all of these questions at various points in my journey, although less and less so these days. For me, the issue of casting my lot with the Jewish people really does resolve the question. So many of the people who I love, who I feel the deepest connections to, who are my family come from the Jewish community that it is impossible for me to imagine that my life and well-being is separate from theirs. But my world isn’t limited to the Jewish community. I have relatives and deep friendships with people who are not Jewish. It is not an either-or question for me. I cannot operate in a world of “them and “us”. I believe that Father Gregory Boyle said it best when he said: “There is no ‘them’ and ‘us”, there is only us”.

The other issue that remains outstanding in this matter is that of truth and at what point, if ever, does truth become outright lies? I’m currently reading a book called “Pioneer Gild: The Annotated Autobiography of Laura Ingalls Wilder”. The book tells that actual story behind the publication of the “Little House on the Prairie” series of books, which were published as fiction. Of relevance to this discussion is how Rose Wilder Lane, the daughter of Laura Ingalls Wilder, took liberties in her writing biographies of famous Americans such as Henry Ford, Charlie Chaplin, and Jack London. In her writing it is said that she often made up facts and events to further the creation of an image of the person and to make the stories more interesting. Her argument was that she wasn’t lying, but that she was using fiction to create a larger truth. Not everyone agreed with Rose Wilder Lane’s use of fiction to create truth and it is said that she was nearly sued by the widows of Jack London and Charlie Chaplain. However, this practice is fairly commonplace in our culture. The American history we teach in our public schools is not the full and complete history of our nation. I would argue that we’ve carefully selected pieces of truth that support a given narrative of our history. However, it’s a narrative that other pieces of truth show is, at best, not completely truthful and, at worst, completely dishonest.

I think that most of us create narratives for our lives that, while not dishonest, they probably don’t follow the exact letter of our own historical truth. It’s always interesting to me to listen to family members recount past events and hear the often wildly different ways in which they remember the past and tell their collective stories. Are we all liars? Perhaps to some degree, but I think it’s more than willful dishonesty. I think that to be truly honest is to be vulnerable in ways that frightens most of us and may even be something that human beings are not truly capable of. Instead, we create narratives of our lives that we share as our truth, but which maintain a degree of conformity with how we see ourselves and how we wish others to perceive us. It is how we maintain a sense of self. Was Caitlyn Jenner being dishonest while living as a man, or is she being dishonest, albeit for a necessary purpose, now that she’s living as a woman? On the other hand, is she now growing into her own truth?

I guess that’s where I would leave the matter of Rachel Dolezal. She cast her lot with a people she identified with and sought to share their experience. She saw the black community as her people and their struggle for justice, respect, and dignity as her struggle. She created in her mind a narrative of her life that, at least to her, became her truth. Was she who she said she was? Not completely, but maybe she was in the ways that really matter. Perhaps, there is a truth within her experience in that the distinctions don’t really matter and that it’s not black or white, but just us human-beings together on a small planet trying to survive.

Thinking About Iran

IranUS Image[Converted]A friend recently asked me for my thoughts on the agreement President Obama recently negotiated with Iran to ease sanctions.  What follows is my response to his inquiry:

I don’t know the details about the deal President Obama entered into with Iran, so I’m not able to say whether or not it’s a good deal. However, I do think there are many reasons why we need to end the sanctions and to begin moving towards a more normalized relationship with Iran.

First and foremost, the existing economic sanctions simply haven’t worked. They say insanity is doing the same thing over and over again while expecting a different outcome. An economic embargo lasting 60 years didn’t work with Cuba. We have imposed sanctions on Iran for more than 35 years without any measurable success other than impeding the growth of the middle class in Iran, which is against our interests, as I will discuss later.

Furthermore, the United States faces the very real possibility that continuing the sanctions would create isolation for the United States. The Soviet Union, along with several other nations, recently indicated that they would no longer go along with sanctions. Thus, our ability to economically isolate Iran, in what is now a global economy, is weakening.

I recognize that my view on Iran is somewhat different than found in the United States mainstream and within the Jewish community. I do not see Iran as being the uncontrollable threat that it is often portrayed as. Granted, they have a fundamentalist religious government, but I feel that a lot of that is our own fault. We rarely speak about the very complex and questionable history the United States has with Iran. Historically, the United States put cheap oil before democracy in Iran by working to over-throw a democratically elected Iranian government in 1953 for the purpose of ensuring American oil companies could access Iranian oil. The United States installed the Shah, a notoriously cruel puppet dictator who ruled until the Islamic Revolution in 1979, which was when the hostage crisis occurred that still resonates loudly in the minds of many Americans.

However, I think it’s important to point out that the Hostage Crisis, while humiliating for the United States, ended peacefully. The Iranians did not kill their hostages in the manner that we see groups such as the Islamic State doing today.

Despite the difficult history and the religiously based government, I think a relationship between Iran and the United States has the potential to be mutually beneficial. Iran is not a backwards nation. Despite having a religiously fundamentalist government, most Iranians are not fundamentalists. Iran is a nation with a high literacy rate. Iran has built several major universities that are producing scientists who are involved in cutting-edge research. There is an expanding middle class that is not religiously fundamentalist. I believe it’s this expanding middle class that is the future to a secure Iran. However, the existing sanctions have greatly impeded the growth of the Iranian middle class. I believe that it is the emerging Iranian middle class that provides the greatest hope for political reforms in Iran and for long-term peace and stability in the area. A nation with a growing middle class along with expanding education is unlikely to start an unnecessary war.

Much of the political discourse is focused upon atomic weapons. I think we have to keep in mind that the technology that gives rise to atomic weapons is now nearly 70 years old. The United States built atomic bombs in the 1940’s without the use of even the simplest computers. The genie is out of the bottle on this one and we need to give a lot of thought to how do we discourage the proliferation of such weapons and defend against the eventual, and I feel inevitable, situation where an atomic weapon falls into the hands of a terrorist organization. We need to consider how do regimes change, including our own government, without the loss or use of such weapons. Additionally, we need to consider what message do we send by having such overwhelming conventional firepower, yet we still maintain the world’s largest arsenal of atomic weapons and have built more atomic weapons that all other nations in the world combined. Additionally, we are the only nation to have ever used an atomic weapon against an enemy. I think this makes it challenging for the United States to speak with persuasive authority, where we ask another nation to abstain from a form of weaponry that forms the backbone of our own military strategy.

Lastly, Israel understandably feels very vulnerable by any prospect of atomic weapons in Iranian hands. Israel has faces a very real threat from Hezbollah, which obtains a great deal of its funding from Iran. However, I continue to believe that the solution to this problem is an expanding Iranian middle class and the changes I believe would occur in the Iranian political landscape with middle class expansion. In essence, my argument at its very core is “open Iran to the world and see what happens”. We know isolation doesn’t create good things, let’s see what engagement creates.