Obergefell: The Dissent’s View on Access to Justice

 

by Jonathan Todres

 

Last week, human rights advocates around the country – and indeed around the globe – celebrated the majority opinion in Obergefell v. Hodges.  In the coming days, weeks, and years, scrutiny of every passage of the Supreme Court’s opinion will continue.

 One short passage in Chief Justice Roberts’ dissent should not be overlooked, as its implications for access to justice are potentially far-reaching.  Near the end of his dissent, the Chief Justice wrote:

“[H]owever heartened the proponents of same-sex marriage might be on this day, it is worth ac­knowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.”

Setting aside the fact that the Chief Justice offers no empirical evidence to support this claim that true acceptance is won only by pursuing change through the legislature, the statement is an ominous warning to others who suffer discrimination: pursue justice through the courts and you won’t be truly accepted. Ever.

Taken to its logical conclusion, it appears Chief Justice Roberts would take the view that African-Americans should not have pursued Brown v. Board of Education and other challenges to discriminatory treatment, but instead should have tried to win the hearts and minds of whites through state legislative initiatives. Likewise, women should not have challenged discrimination in the workplace or elsewhere but should have awaited “true acceptance.”

The courts by their very nature exist to protect individuals who are subjected to discrimination and other rights violations and are unable to avail themselves of legislative solutions because they are not part of the majority.  Maybe it was a moment of hyperbole as the Chief Justice tried to assert the issue was one for the legislature. Still it’s worrisome when the Chief Justice of the highest court in the land espouses the view that it is a mistake to challenge discrimination through the courts.