Gay Marriage Decision: Right for the Wrong Reasons. Dissents: Wrong for Worse Reasons.

Terrible, incoherent logic from all sides

The Supreme Court has ruled that bans on same-sex marriage are unconstitutional.

The outcome is right, but once again, Justice Kennedy’s effort to produce something lasting and profound is a failure, and results in an opinion easy to ridicule, and lacking the logical infrastructure necessary to support the conclusion.

That lends undeserved credence to the wrongheaded dissenting opinions, and particularly Justice Thomas’s, which is the best of them, but leaves the most important questions totally unaddressed.

In short, all the opinions are sloppy or beside the point, and while the result is good, these flaws in the reasoning bode ill for the future.

The problem comes at the confluence of the Due Process of Law and Equal Protection Clauses.

Due Process of Law forbids the government from taking away your life, liberty, or property for arbitrary reasons or in arbitrary ways. So, for example, the government can’t take away your stuff or throw you in jail on a “because I say so” basis.

Equal Protection, on the other hand, says the government cannot discriminate against you — it can’t treat you differently from other people, without some good reason.

The two things do, indeed, tend to overlap: for you to be discriminated against for no good reason (Equal Protection) is a kind of arbitrary treatment (Due Process of Law).

But they are not always the same thing. The government can take certain things away from you without violating Due Process of Law, because you had no right to those things; yet that same deprivation might violate Equal Protection because it is taking those things away on a discriminatory basis.

Recognition of marriage — the civil, legal, political institution — is a kind of government benefit. It’s not a right that you would enjoy in a state of nature. Cohabitation, privacy, sex with a willing partner — these things are all rights that you would have in a state of nature. Adam and Eve had these rights. But they weren’t married, because there was no state to give them a marriage license. Marriage is therefore a sort of government benefit.

This means, as Justice Thomas rightly points out in his dissenting opinion, you don’t have a right under the Due Process of Law Clause to a marriage, because that Clause only protects your rights to life, liberty, and property, and by “liberty,” the Constitution means the kinds of rights Adam and Eve would have had: natural rights — the right to own things, to speak your opinions, to worship as you choose, to buy and sell stuff, etc. — but not “positive rights,” like the right to a marriage license.

But this distinction gets lost in Justice Kennedy’s opinion. He goes on at length arguing that you have a liberty right to marriage. Why? Because that’s what the Court did in the 1960s, in Loving v. Virginia, the famous interracial marriage case.

In addition to referring to the right to marry as part of the liberty protected by the Due Process of Law Clause, he also stuffs in all these references to “dignity” and “nobility” and so forth — a right not to be demeaned. But, once again, being demeaned is not an offense against the Due Process of Law Clause. It’s an offense against the Equal Protection Clause.

Look at Brown v. Board of Education, the classic case about “demeaning.” Separate but equal didn’t offend the Due Process of Law Clause, because (in theory) black kids got “equal” schools to white kids, but they just weren’t allowed to intermix.

That’s an offense against the Equal Protection Clause, because it treats people differently for no good reason, but it’s not (again, in theory) a violation of the Due Process of Law Clause because it isn’t taking away any of their rights. (We all know that in practice, separate-but-equal wasn’t actually equal, but just for purposes of the legal theory, we’re assuming they were.)

If I give you the same stuff as I give everyone else, but I force you to come in through the side entrance instead of the front door, that’s discriminatory treatment — that’s a violation of Equal Protection — not a deprivation of liberty, and thus not a Due Process of Law question. If there is any constitutional “dignity” clause, which Justice Thomas denies, it’s the Equal Protection Clause, not the Due Process of Law Clause.

Justice Kennedy goes on — rightly, in my view — to demolish all the arguments in favor of restricting marriage to opposite-sex couples: marriage isn’t about procreation, same-sex marriage won’t harm opposite-sex marriage, and so forth. I think those arguments are perfectly sound, just as they were a decade ago when they were made in the Massachusetts Goodridge decision.

But then he never really says when the government can restrict your marriage rights, or deprive you of this “dignity.” He reaches

the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty….

[T]he State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Well, now, he can’t actually mean that they “may not be deprived,” because there are doubtless at least some reasons he would say it’s okay to take away the right to marry (minors, for example, or people who are already married). Indeed, he says “the same terms and conditions as opposite-sex couples.” 

But does he mean even that? Used to be (and maybe still is, I don’t know) that opposite-sex couples had to get blood tests before marrying, to ensure that they wouldn’t have kids with birth defects. Obviously that doesn’t apply to same-sex couples.

Point is, Kennedy never explains exactly when or how this fundamental right to marry can be limited. Presumably, because he says it’s a “fundamental” right, he thinks strict-scrutiny should apply, but that phrase is notably absent from the opinion, which makes no reference to standards of scrutiny at all.

Much more disturbing is Kennedy’s apparent belief that the Supreme Court decides to give people rights when it believes that the time has come.

He says, rightly, that “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights” and that “when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decisionmaking.”

But then he says 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. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. (Emphasis added.)

Well, now, that’s true, but the rights that people invoke or assert aren’t just desires that they think the system ought to respect. They’re rights that belong to them by their humanity, and are discovered through a process of reasoning that has been the backbone of political philosophy for millennia.

It’s not just a matter of people asking judges to give them rights: it’s a matter of people showing that they in fact have these rights as part of their general human right to liberty, and that the government is unjustifiably infringing them.

Kennedy doesn’t actually say otherwise, but his failure to make this point leaves him vulnerable to the charge that he’s acting as a manufacturer of rights instead of a discoverer and articulator of rights.

He reinforces that impression when he says that the twenty years between Bowers and Lawrence caused people to suffer “dignitary wounds” in the interim.

What difference can that make? If a person goes before a judge arguing that the court should invent a right to three square meals a day, and is denied because no such right exists, he may suffer a “dignitary wound” — but he should, because his argument is silly.

The question is not whether people suffered “wounds” but whether the opinions are rightly decided or not — and as moving as the stories of James Obergefell and April DeBoer may be, they don’t change that fact. Such “poor Joshua!” arguments undermine Kennedy’s credibility in the long run.

This sloppiness plays into the hands of the dissents, of course. Justice Scalia ridicules Kennedy’s highfalutin language in terms that seem unusually bitter even for him.

But of course his arguments and those of the other dissenters are even worse. Characteristically, Scalia ridicules the idea of unenumerated constitutional rights, arguing that the way “our system of government is supposed to work” is that voters decide when to grant or withhold rights — and not just marriage rights:

The Constitution places some constraints on [majority]-rule — constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth.

Now, for each of these clauses, Scalia cites a provision of the Constitution. Notice one missing? He makes no mention of the Ninth Amendment — which says “the enumeration in this Constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people.” That is, there are rights not specified in the Constitution that the Constitution nevertheless protects.

So Scalia should have said, “Forbidden are laws ‘impairing the Obligation of Contracts,’ denying ‘Full Faith and Credit,’ or abridging ‘other rights’” — but of course that last bit would have shown that he’s begging the question: Is same-sex marriage one of these other rights?

The reason Scalia ignores the Ninth Amendment (and, incidentally, the Privileges or Immunities Clause of the Fourteenth) is that they contradict his opinion that the Constitution allows the majority to give or withhold rights from people practically without limit.

I say “practically” without limit, because Scalia recognizes that the Constitution does forbid voters from doing certain things — but even here, he says that these things are protected only because those “constraints [are] adopted by the People themselves when they ratified the Constitution and its Amendments.”

In Scalia’s view, even the rights in the Amendments can be revoked whenever the majority decides to do so.

His argument boils down to this: There simply are no rights.

If Justice Kennedy thinks that you have rights to whatever the courts decide to give you rights to, Justice Scalia thinks you have no rights except what the majority decides to allow.

Justice Thomas is the only justice who thinks you actually do have rights.

In the sort of precise, thorough, well-argued opinion typical of him, Thomas explains why the Due Process of Law Clause is really misplaced here: the right to marriage is a benefit, not a right…

And then?

The problem with Justice Thomas’s opinion is that he never goes on to address the Equal Protection problem that he rightly argues is genuinely at stake here!

If this case is not about a natural right but about a benefit, the government still may not arbitrarily choose whom to give benefits to, and whom to withhold them from: It can’t grant business licenses only to white folks but not to the Chinese, for instance, or give government jobs only to whites but not blacks.

So is there a valid reason for withholding marriage from same-sex couples?

He makes little effort to refute Justice Kennedy’s explanation of why such reasons are lacking. Indeed, it appears to me that his entire argument on this point consists of Footnote 5 of his opinion, where he gestures in the direction of historical precedent as the sole basis for his opinion, and even there, he’s really addressing a different subject.

So we’re left with an opinion from Kennedy with rhetoric that aims too high and fizzles, and dissenting opinions that amusingly take that rhetoric apart, but either stand for the dangerous notion that you have no rights valid against the majority (Scalia) or fail even to address the question at hand (Thomas).

In that context — and solely in that context — I agree with Chief Justice Roberts’s closing: The outcome is worth celebrating, but don’t give credit to legal reasoning, since there appears to have been little of that at work here, on any side.

A proper decision would have regarded this as an Equal Protection, not as a Due Process of Law matter; would have acknowledged that recognition of marriage is a government benefit that may not be withheld without good reason, and that there is no good reason (insert here pages from the much better-reasoned Goodridge opinion), and call it a day.

Ed. updateIlya Somin thinks that Kennedy's opinion is dubious and poorly reasoned, but it might not matter. David Bernstein thinks that the majority is wrong, and it really could matter a whole lot. Bernstein also finds Roberts's dissent attacking Lochner to be dangerously wrong.

Further Reading

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