How Did the Obergefell Decision Work?

Back in 2015, the "Obergefell vs Hodges" decision (OvH) at the US Supreme Court made same-sex marriage a possibility across the country.  Since then the political aspect of the "marriage debate" seems to have died down.

But a week ago a chap told me he thought OvH was a masterwork of jurisprudence.  I replied it was a textbook case of an activist judge legislating his personal ideology from the bench.  Then he was asked me - (well, challenged me) - to prove my assertion from the text of the decision itself.

Today I want to share my analysis of how the decision works and whether Justice Kennedy made a sound decision... or an arbitrary royal decree.

Setting the Table:

Alright, the first thing to know about the decision are the two sides and what they asked the court to answer.  The sides are:

• The proponents of the natural-classical understanding of "marriage".  They see marriage as a union between husband and wife which prepares them for any children they may produce.  A fundamental reason for the existence of marriage is to ensure that children have a mother and a father.  Under this philosophy, the government is involved in marriage because it protects the natural rights of parentage shared by the parents and their kids.  These folks are called the "respondents" in the text. 

• Those who wish to see the full recognition of "marriage" given to romantic unions composed of members of the same sex.  From their point of view, marriage is a secular contract which dignifies romantic relationships and confers legal and tax benefits.  The role of the government is to confer these benefits and public affirm the value of said romantic relationships.  These are the plaintiffs in the text.

Thus, the core questions at hand in this decision are:

• What does the word "marriage" mean?  What is the nature of the institution by that name?
• Why does the government have a vested interest in it?

Understanding these two points of view and their implications is key.

From the respondent point of view, same-sex marriage isn't "banned" any more than "5-sided triangles" are "banned".  It's just that a proper understanding of  "marriage" means the concept of "same-sex marriage" is a contradiction in terms.  Thus, the plaintiffs seek a redefinition of marriage which eliminates its core purpose.

From the point of view of the defendants, this is about extending access to an institution to a minority which has been traditionally excluded from it.  And those who seek to limit marriage to opposite sex couples are operating out of an outdated bigotry which has no practical place in today's world.

Now... onto the decision itself.  I'll be using the PDF from the SCOTUS website.  All page references are to that PDF.


An Early Tip of the Hand:

Starting on page 6, in the section marked by a Roman numeral II, Kennedy reflection on the sociological importance of marriage and the motives of the two sides.  Regarding the respondents, he says:

"To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world."

Now he turns to the motives of the plaintiffs and seems to offer a correction to the respondents' view of things:

"Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment."

This paragraph tips his hand regarding his fundamental assumptions and the way the ruling is going to be decided.  Why?  Well, let's get inside his head for a moment.

I noted above how the two sides view the case.  The respondents see it as a redefinition.  The plaintiffs see it as an extension of equality.  Kennedy states the first point of view as "the way they see it", but he states the latter point of view as a fact.

This indicates early on where his mind is on this issue.  He's already subscribed to the new definition of "marriage" and is getting ready to establish it for the nation.  The rest of the opinion is just explaining how he got there.


The Evolution of an Institution:

Starting on page 11 (in a section titled 'B'), Kennedy starts doing some philosophy and history.  He begins by saying the nature of marriage is always changing.

"The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change."

He lists two examples of those changes:

• Arranged marriages moving to voluntary contracts
• The ending of coverture, which is when the law treats the couple as a single unit.

Now... these two examples of change make no sense.  The first change regards how and why people entered into marriage.  The second is about how the law regarded married couples.  Neither is an example of change to the essence of the institution as the union between husband and wife.

This would be like saying the fundamental nature of a hardware store depends on whether you get there by car or bike.  Or like saying the store's nature depends on how it files its taxes.  Well, it doesn't. 

Anyway, then Justice Kennedy concludes on page 12:

"These new insights have strengthened, not weakened, the institution of marriage." 

I'm sure he thought that statement was obvious and uncontroversial, but it's just pure editorializing.  It also lacks historical self-awareness and humility.  In the USA, the commonly cited statistic is that half of marriages end in divorce.  Are we really to think we have a higher value of marriage than the medievals?

I digress again. All of this background serves a critical conclusion in Justice Kennedy's mind:

The nature of marriage can change to whatever society wants it to be.

The Court Reconsiders:

From there he describes the case-history regarding the right to marry, particularly Zablocki v. Redhail and Loving v. Virginia.  The former was a law which prevented men who were behind on child-support payments from getting married.  The second was a Virginia law outlawing interracial marriages. Both were struck down upon review.

These precedents aren't nearly as relevant as many folks like to think they are.  In both cases the question at hand was "can the state prevent a person from getting married?"  That's very different from asking, "What is marriage, anyway?"  Many people conflate those two questions when bringing up those cases.

Kennedy, to his credit, doesn't make that mistake.  By looking at these precedents, he rightly concludes that judicial precedent establishes a personal right to get married.  He says on page 16:

"Applying these established tenets, the Court has long held the right to marry is protected by the Constitution." 

But now we get to the critical question: What is "marriage", Justice Kennedy?  We all agree that people have the right to it... but what is it?

Well, now he starts winding up for the big reveal.  He begins by admitting the "right to marry" was established when marriage was presumed to be a conjugal union of the sexes.  But then he says we've gotten wiser since then (page 16):

"It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.[] When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed."

In other words, Kennedy was convinced that the culture had evolved a better, more equitable understanding of the institution of "marriage" - and that it was time for the US Supreme Court to respond in kind.

Which leads us to his core thesis on page 18:

"The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."

That's it.  That sentence is the beating heart of the whole decision.  The bottom line is that Justice Kennedy looked at the momentum of cultural change and decided the new definition of marriage was:

"An enduring monogamous bond for intimacy, mutual support, personal growth, 
and public recognition."

Every time Kennedy used the word "marriage" in the court's opinion, that's what the word meant in his head.  However, that's not a legal opinion.  Sure, Kennedy cites some lower court decisions on his way to making that pronouncement, but they were doing the same thing he was doing: amateur sociology.

But what of those who disagree with that definition?  Kennedy's arguments portrayed them unenlightened - folks who haven't gotten with the times.  He says on page 22:

"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."

Well, to him anyway.  As the dissents rightly point out, this new definition is just an arbitrary imposition of five Ivy League lawyers.  One can offer a philosophical defense of the natural-classical understanding of marriage.  But this new definition?  He doesn't even try.  Why does it have to be only two people?  Why does it have to be an enduring romantic bond?  There's really no answer.

Because of this, every argument Kennedy employs throughout this decision (all of them) could just as easily be used to argue that the Constitution guarantees a right to polygamy... and other things.


A Mandate of Justice:

Now, I've have some people insist to me:

"Obergefell did not redefine marriage.  It just said you can't discriminate against same-sex marriages!" 

One person who wasn't aware of that talking point was... Justice Kennedy.  He knew he was defining marriage.  On page 28 he said:

"The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage." 

So yeah, he knew what he was doing.  That is... when he wasn't contradicting himself.  On page 30 he says:

"The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry."

... which is only true after you've decided the definition thereof.  But at this point he's made up his mind.  So that's what the issue becomes.  This leads us to the final section, the coup de grâce.

Having defined this new understanding of marriage, Kennedy determined there could be no possible basis for preventing same-sex marriages.  The restriction of marriage to opposite-sex couples was therefore a violation of folks' fundamental rights.  And while he acknowledges that democracy is valuable to the American system, he notes that the forum of fundamental rights is the Judiciary.  He says on page 29 :

"Thus, when the rights of persons are violated, 'the Constitution requires redress by the courts,' notwithstanding the more general value of democratic decision making. This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity."

Thus, he concludes that he is bound by justice to force his new definition upon the entire country.  On page 27 he says:

"These considerations lead to 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. The Court now holds that same-sex couples may exercise the fundamental right to marry."

In Brief:

So as near as I can tell, the Obergefell decision follows a six-step process in Justice Kennedy's mind:

Let's return to the original question: 

Was Obergefell a sound exercise in jurisprudence?  Or did Kennedy legislate from the bench like a king?

The answer is ... both.  He did apply sound jurisprudence to the questions raised in Obergefell, but only after legislating a new definition of marriage like a philosopher king.  Regardless of whether one likes the outcome, it would be hard to defend Obergefell from the standpoint of jurisprudence.

Does this mean it will ever be overturned?  No.  That's pretty much impossible.