thoughts on the threat to American democracy

The Supreme Court’s decision in Obergefell v. Hodges is being praised both for its practical outcome — making same-sex marriage, like opposite-sex marriage, a constitutionally-protected “fundamental right” — and for Justice Kennedy’s warm language celebrating and defending marriage:

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.

The decision is also morally the right one. But there is, of course, still the question of whether the ruling makes sense as a matter of law. I think it does, based on the cases that have come before, the role of judges as interpreters of the Constitution, and the basic structure of the Constitution. Here are my thoughts.

The majority’s opinion is rooted primarily in the Due Process Clause of the Fourteenth Amendment, which reads:

No state shall . . . deprive any person of life, liberty, or property, without due process of law . . . .

Obviously, the primary function of this clause is to ensure that people subject to U.S. law get “due process of law” before the government works a deprivation on them — so, for example, the government cannot (subject to some exceptions in emergency situations) seize your car without a hearing. The police cannot take you into custody without probable cause, they cannot hold you for very long without a hearing, and the state cannot put you in prison or kill you (again, subject to certain exceptions) without a trial. There must be some formal (and fair) “process” before life, etc. can be taken from you — and the greater and more intrusive the deprivation, the more process is required.

However, as the majority opinion in Obergefell explains,

This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification.

Of course, some of these rights are already specifically enumerated in the Constitution: the rights to free speech, religious expression, arms-bearing, jury trial, and so on. But these enumerated rights are not the only rights that are typically understood to be fundamental, and constitutionally protected — nor, by the plain text of the Constitution, should they be:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Thus, the Court has occasionally found constitutionally protected such rights as the right to travel between states, the right to raise one’s children, the right to decline medical treatment, the right to use birth control, and the right to autonomy in one’s sexual behavior. (Somewhat more controversially, the Court has also found a constituional right to have an abortion — a right whose outer boundaries have contracted somewhat since the Court’s initial decision — and a right to contract free from interference by government regulators — a right which has subsequently evaporated altogether.)

The right to marry is another of these unenumerated constitutional rights. In Loving v. Virginia, the Court overturned a law criminalizing interracial marriage, in part because

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

That very strong statement of the right — one of the strongest in the “fundamental rights” canon — announces a couple of important principles. First, the right to marry is important enough that it cannot be infringed on an “unsupportable basis” — that is, irrational reasons won’t do. Second, it is not enough that one be able to marry someone; a core part of the right to marry is the ability to marry the person of one’s choosing.

These principles undergird the Court’s decision in Obergefell, of course. Bans on gay marriage are logically “unsupportable,” in that proponents have been unable to advance any reason for the bans that would not also apply to some sizable portion of straight marriages. And they interfere with the fundamental right of personal choice in precisely the way that anti-miscegenation laws do.

The majority also points to two other cases affirming the right to marry — Turner v. Safley, which held that the Missouri Division of Corrections could not prevent inmates from getting married, and Zablocki v. Redhail, which invalidated a Wisconsin statute requiring persons owing child support to prove to a court that they were current on their payments before they could get married. Both cases underscore how serious the state interest must be — and how well-founded the rationale — to impinge on the individual’s interest in marriage.

In Zablocki, the state argued, among other things, that

the statute provides incentive for the applicant to make support payments to his children.

But the Court found that a state interest in collecting child support — a quite profound interest — did not justify the imposition on the right to marry, because the chosen method was unlikely to create the desired result:

First, with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children. More importantly, regardless of the applicant’s ability or willingness to meet the statutory requirements, the State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute’s and yet do not impinge upon the right to marry. Under Wisconsin law, whether the children are from a prior marriage or were born out of wedlock, court-determined support obligations may be enforced directly via wage assignments, civil contempt proceedings, and criminal penalties.

In Turner, a state corrections regulation forbade inmates to marry without permission from the superintendent of the prison, which would usually be given only for “a pregnancy or the birth of an illegitimate child.” The Court noted that prison regulation was an area where judges are particularly unqualified to second-guess the executive branch, which has special expertise in administration of the lives and needs of prisoners. The Court therefore announced that it would evaluate prison regulations with a much laxer constitutional measure than laws outside the prison walls: the regulation need only be “reasonably related to legitimate penological interests” to survive constitutional scrutiny. Nonetheless, the Court found that the Missouri regulation, supposedly predicated on security concerns, did not meet even that minimal standard:

There are obvious, easy alternatives to the Missouri regulation that accommodate the right to marry while imposing a de minimis burden on the pursuit of security objectives. See, e. g., 28 CFR § 551.10 (1986) (marriage by inmates in federal prison generally permitted, but not if warden finds that it presents a threat to security or order of institution, or to public safety) . . . . Moreover, with respect to the security concern emphasized in petitioners’ brief — the creation of “love triangles” — petitioners have pointed to nothing in the record suggesting that the marriage regulation was viewed as preventing such entanglements. Common sense likewise suggests that there is no logical connection between the marriage restriction and the formation of love triangles: surely . . . inmate rivalries are as likely to develop without a formal marriage ceremony as with one.

(Note, by contrast, that prisoners and even ex-prisoners can have many of their other fundamental rights abridged in quite drastic ways — they lose entirely the right to bear arms, for example, and those on parole or supervised release may lose the right to travel, at least without permission. But they still freely exercise the right to marry.)

The outcome in Obergefell flows, if not inexorably, then logically enough from these precedents. If the right to marry (and, specifically, marry the partner of one’s choosing) is fundamental, and if the state must present serious and not merely flimsy or pretextual arguments in favor of abridging that right, then it follows quite sensibly that the state may not abridge the right to marry a same-sex partner without solid arguments that some state interest requires it. Serious arguments that same-sex marriage would impinge on any legitimate state interest are exactly what have been lacking in the various cases litigated over the past decade, and so the Court held that such abridgment is improper.

Of course, because the announcement of “fundamental rights” is an exercise of judicial power, perhaps informed by but not determined by democratic political processes, the Court has consistently warned that the justices must

exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.

Chief Justice Rehnquist wrote that

[o]ur Nation’s history, legal traditions, and practices . . . provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause.

The dissenters in Obergefell therefore primarily rest their arguments on the notion that the Court, by deciding the issue unilaterally, has overstepped its bounds, arrogating to itself the policymaking power more properly invested in the legislature, and doing so without regard to history or our legal traditions.

Chief Justice Roberts, for example, notes that

There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

Who indeed? One could answer Roberts with Chief Justice Marshall’s maxim, from Marbury v. Madison, that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Deciding the definition of legal terms is the essence of the judicial function.

Beyond that, though: to leave that authority entirely in the hands of the legislature would be to allow legislators to exclude people from legal marriage in ways that would contravene the Court’s uncontroversial precedents. It cannot be the case, for example, that the legislature can define marriage as “the legal union of a man and a woman of the same race.” But why not? If the legislature gets to “define” marriage, shouldn’t Chief Justice Roberts want to overturn Loving as an unreasonable infringement on the powers of the people’s elected representatives? There is no indication that he does. Similarly, with regard to Turner, why can’t the legislature (or prison regulators) “define” marriage as “the legal union of one free man and one free woman”? That language is uncomfortably close to the historical precedent of excluding slaves from legal marriage, but if the legislature has carte blanche to decide “what constitutes marriage,” why not?

Of course, it should be obvious that judges are also not free to define marriage any just way they want. They cannot define marriage nonsensically — as, say, a physical welding of one toaster and one office chair. They also presumably cannot define marriage in a way that would substantially encumber the practice of marriage as we know it today — for example, by creating onerous requirements for divorce.

The dissenters ask whether judges can define marriage in ways that diverge from historical tradition. But their reading of history is peculiarly narrow. According to Roberts,

As the majority acknowledges, marriage “has existed for millennia and across civilizations.” For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman.

That is not remotely true. First, as Roberts knows perfectly well, many cultures have had a view of marriage much broader than “a” man and “a” woman — the ancient Hebrews, for example, and the somewhat less ancient Muslims, and the fairly recent Mormons all embraced polygamy. (And that’s just cultures in the Abrahamic tradition.) Second, lurking in the background of many of the cultures of the past is a little-remarked-on tradition of acknowledged same-sex couplehood and marriage. Sometimes these occurred via a culturally-acceptable gender fluidity; e.g.:

We’wha was a key cultural and political leader in the Zuni community in the late nineteenth century, at one point serving as an emissary from that southwestern Native American nation to Washington, D.C. He was the strongest, wisest, and most esteemed member of his community. And he was a berdache, a male who dressed in female garb. Such men were revered in Zuni circles for their supposed connection to the supernatural, the most gifted of them called lhamana, spiritual leader. We’wha was the most celebrated Zuni lhamana of the nineteenth century. He was married to a man.

But sometimes not, too:

[T]here were societies in pre-colonial Africa that permitted women to marry other women. These marriages typically helped widowed women who didn’t want to remarry a man or return to their family or their husband’s family after the husband’s death . . . . Instead, the widow could pay a bride price and perform other rituals needed to marry another woman . . . .

(There are more things in heaven and earth, Horatio….)

More importantly, the development of American law and history supports the majority’s conclusion. Here is Roberts again:

Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship . . . .

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

As anthropology, this is not correct — at least, not as an absolute statement of the inevitable requirements of child-rearing. For example, in matrilineal societies, including a number of American Indian societies, is it common for a child’s primary male caregiver to be his maternal uncle, rather than his biological father. Fathers may be somewhat ancillary to the child’s life, even if an affectionate bond remains.

But it is also not true of either historical or modern American society or marriage. Historically, it paints an overly rosy, child-oriented picture and ignores a primary motivating factor in the promotion of marriage as the channel for sexual energy: the desire to preserve inheritance of family property to biological offspring of a particular set of partners, who, at least in early colonial history, would have been selected for one another by their families. There is also the Pauline/Augustinian tradition, strong in American religious traditions, of thinking about sex as something earthly and unfortunate, and marriage as the “release valve” institution designated by God to keep the weak from sin until the Lord returns.

Despite the church’s best efforts, though, it has never been the case that “sexual relations that can lead to procreation . . . occur only between a man and a woman committed to a lasting bond.” In the latter part of the 1700s, “more than one girl in three was pregnant when she walked down the aisle. In parts of Britain, 50 percent of brides were great with child.” And even if many of those pregnancies resulted in marriage in earlier periods of our history, they certainly don’t today. As early as the 1970s, one third of children were conceived, and one in five were born, out of wedlock. Today, among millenials, 64% of mothers have had at least one of their children without being married.

This is to say nothing, of course, of the marriages of those who cannot have children or do not want to have children. As marriages occur later in life and fertility falls, it is now not remotely uncommon for a marriage to have nothing whatever to do with child-rearing.

Marriage is also not what it used to be as a legal mechanism. The Obergefell majority mentions the law of coverture — which prevented a married woman from holding property or entering into contracts — as an example of a practice that has fallen away. Roberts insists that this change has not altered the “core” of marriage, but he is wrong. The abandonment of coverture and the development of modern marital property law, child support law and “no-fault” divorce all ensure that marriage is no longer guaranteed, or even likely, to result in “the stable conditions of a lifelong relationship.” If either party does not like a marriage, they can leave and forge a life without their former partner, unencumbered by either legal ties or, hopefully, economic dependency.

Nor is marriage any longer required to ensure one’s children will be able to inherit. In many states, now — thanks in part to the meddling of the Supreme Court — an illegitimate child can inherit routinely from the mother, and can inherit from the father if paternity is established during the father’s lifetime.

Thus, the Supreme Court’s description of marriage in 1888

Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority.

— though still technically true, no longer accurately describes the practical effect of our law of marriage. The overwhelming trend has been away from social control and toward individual autonomy and liberty of choice.

Perhaps because the effects of these legal changes are so obvious, Chief Justice Roberts next turns to a kind of appeal to bottom-up-authority:

The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.”

Probably that’s true, but that is because they wouldn’t have had to — the law did the defining for them. If you asked a person on the street to define a “contract,” likely they could not come up with offer, acceptance, consideration, and mutuality, either. But the shape of their lives nonetheless depends on the law correctly identifying and applying the elements of a contract. Moreover, if you had asked people of the past specific questions about how marriage worked — “how easy is it to get a divorce?” “can a child born outside the confines of marriage inherit family assets?” — my suspicion is that most would have been able to give you an accurate answer.

But even if the Chief Justice were correct as to the universality and centrality of a certain purpose of marriage, and even if the law of marriage had not definitively moved away from the model he describes, that would still not provide a rational reason not to affirm gay marriage in a modern world where adoption and “blended families” are common. Procreation is important, yes, and a child’s “prospects” — however you care to define that — might well be better if he or she has two parents rather than one. (I could ask whether a child’s prospects increase linearly with the number of parents, and if so whether that is not a strong argument for plural/polyamorous marriage… but let’s let that lie.) But nothing in the social science we have supports the idea that those parents must be the child’s biological parents. To the degree that marriage is and should be about provided a loving, united home for a child to grow up in, then, it seems obvious that expanding the total possible number of marriages that could provide such a home can only redound to the benefit of children.

Given all this, the majority’s conclusion strikes me as in line with the historical trends regarding the role and purpose of marriage in our lives.

That leaves, I think, the real argument hidden behind all this law-office history and sociology: that the decision is undemocratic. As Justice Scalia writes, the Court is both unelected and unrepresentative:

[T]his Court . . . 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 composes about one-quarter of Americans), or even a Protestant of any denomination.

And that’s true. (One could ask whether the abortion litmus test for Republican appointees has skewed the Court Catholic in recent decades — all five Republican appointees currently sitting are Catholic. But it’s also possible that the religious distribution is just a statistical anomaly — historically the Court has been highly Protestant.) Courts are not representative bodies, and judges should exercise caution before plunging ahead where democracy has not acted, or remains divided.

On the other hand, there are good reasons to think this decision, even if handed down by a small group of judges, is not the end of democracy as we know it.

First, decisions by the Supreme Court are always made by this elite, unrepresentative group — a fact Justice Scalia does not bother to highlight when he is in the majority. Scalia attempts to distinguish between judges “functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage” and judges answering the “policy question of same-sex marriage.” But of course, the selection of the “legal question” to be answered — and, especially, Scalia’s choice to frame it in such a way as to guarantee the outcome he wants — is, itself, a “policy” choice. The idea that judges can answer legal questions without interposing their personal preferences is a bit of a fiction.

This is why tradition requires judges — at least appellate judges, who “make” the law — to explain their reasoning. Judges are never going to just, in Chief Justice Roberts’ memorable phrase, “call balls and strikes,” and we should not expect them to leave their personal biases and opinions at the door. Rather, we should expect exactly what happens: thousands of judges around the country reading and critiquing each other’s reasoning — not to mention legal scholars, journalists, and the general public. Judicial opinions do not occur in a vacuum, are subject to review over time by other judges, and are (on some subjects) the focal point of intense public scrutiny.

Second, judges must have some freedom to, if I may put it indelicately, make some things up. There is much on which our system of democracy depends that simply appears nowhere in the text of the Constitution. I am not talking just about unenumerated fundamental rights, although that is probably the category of non-textual “constitutional” provisions people are most familiar with. Judicial review itself — the idea that judge can declare a law unconstitutional, and that the decision of the Supreme Court on matters of constitutionality (or even statutory interpretation) is final — is simply not present in the Constitution. Go read Article III — it’s short and plainly written. Nothing in it suggests that the Supreme Court is the final arbiter of constitutional limits, or that the other branches must respect the Court’s decisions. That principle — which we now accept as one of the core checks on executive and legislative power — was itself the creation of judges, based on their judgment of how the Constitution must work, what it must be saying, even though it doesn’t actually say anything of the kind explicitly.

Judges are therefore always filling in gaps and silences in the Constitution. (As another example, the Constitution grants Congress the power to “regulate commerce with” Indian tribes, but is silent about how Indian nations would function as governments if absorbed into the United States. Once that happened as a practical matter, judges developed an entire body of quasi-constitutional law to define the nature and limits of Indian tribal sovereignty.) This is nothing new, and nothing alarming.

Judges also resolve ambiguities in the Constitution. For example, the Fifth Amendment provides that

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger[.]

Now, in that archaically written sentence, does “when in actual service in time of war or public danger” modify only “the militia,” or both “the land and naval forces” and “the militia”? In other words, can a soldier in the Army or a sailor in the Navy demand a grand jury indictment when tried during peacetime? Or is it only militia members who have the right to a grand jury during peacetime? Grammatically, the sentence is ambiguous; courts have had to resolve this question. And what does “arising in the land or naval forces” mean? Does the crime have to be connected to a soldier’s actual military service, or can he be tried without a grand jury indictment on any crime he commits during his term of service? Courts have had to answer that question, too.

As long as judges confine themselves to either resolving ambiguities or inferring necessary constitutional mechanisms and fundamental rights of the people (even rights not previously understood), there is no constitutional crisis. Judges should move cautiously and prudently, examine their biases, and base their opinions on logical arguments. Those opinions should then be analyzed and criticized, to see whether their reasoning is valid and in line with the country’s general values. Sometimes, a judicial opinion that purports to resolve an ambiguity will be found to be mistaken, or so obviously the result of intolerable bias that it must be overturned. Many judicial constitutional inventions, however, will stick, because they obviously further the cause of justice in a democracy. There is nothing disastrous to the republic in this ongoing development of constitutional principles.

Of course, it is significantly more dangerous when the Court outright defies the plain meaning of an explicit constitutional provision. In Korematsu v. United States, for example, the Court held that an executive order excluding Americans of Japanese ancestry from parts of the West Coast during World War II was constitutional as an exercise of the President and Congress’s war powers. Notably, the majority opinion does not mention the words “equal protection,” although the result of that opinion is plainly contrary to the Equal Protection Clause of the Fourteenth Amendment, as noted by one of the dissenting judges. Similarly, in Kelo v. City of New London, the Court held that the Fifth Amendment, which provides that private property may only be taken by the government for “public use,” did not bar a city from seizing people’s property and turning it over to a private developer.

Korematsu and Kelo have been heavily criticized over the years. It is probably safe to say that Korematsu is no longer good law, and its injustices would not be repeated by the Court today, although it has never officially been overturned. And many state legislatures reacted to Kelo by passing statutes preventing cities and counties from exercising eminent domain for the benefit of private parties.

But if later Courts and/or legislatures do not respond, there is still always a backstop against perceived judicial overreach. It is not, as Justice Scalia suggests in the final paragraph of his dissent, executive nullification:

The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

That is a solution that only invites worse abuses, and by a far more powerful branch. (Just ask the Cherokee.) The executive branch — i.e., the branch that already has the power of armies, police, and intelligence services — should not unmoor itself from obedience to the courts, no matter how wrong-headed a particular decision might seem.

Rather, the solution that always remains available is popular sovereignty. The people are always free to amend the Constitution after a Supreme Court ruling that “gets it wrong.” Indeed, the very first amendment to the Constitution after the Bill of Rights was in response to a ruling of the Court. In Chisholm v. Georgia, the state of Georgia argued that, as a sovereign, it could not be sued by an individual. The Court held that Article III’s grant of federal jurisdiction over “controversies . . . between a State and citizens of another State” abrogated most claims Georgia might have to sovereign immunity. Congress promptly proposed an amendment to the Constitution to reverse Chisholm, the amendment was ratified by the states, and states have been immune from suit by citizens (unless they consent to be sued) ever since.

The “go amend the Constitution” argument is often thrown out by conservative judges — Scalia prominent among them — who believe, e.g., that the First Amendment largely forbids limits on campaign finance:

The principle of the First Amendment is the more the merrier; the more speech the better. False speech will be answered by true speech. That’s what we believe and maybe it’s a stupid belief, but if it is you should amend the First Amendment.

But there is no reason that argument should not also apply when the Court does something conservatives dislike. If gay marriage is bad enough that it seriously imperils our democracy — do something! Agitate for a convention of states, for example. Or, like the left, introduce an amendment in Congress. The process is cumbersome — too cumbersome, as Scalia himself frankly acknowledges. But when people hate something enough — when it is a clear policy disaster — the political will can be found to pass an amendment.

But if, as I suspect, the problem is not so severe as all that, then all the normal solutions are available: try to convince the Court to change its mind, test the limit of the holding with edge cases, engage in sustained public debate to convince jurists that the law means something else.

Or… just live with it. You don’t always get what you want — even if you are The People. A republic is like that sometimes.

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