Wednesday, September 2, 2015
By Jeremiah Ho
There has been much criticism over the emotional rhetoric of Justice Kennedy’s majority decision in Obergefell v. Hodges—especially when comparing it to the seemingly more rigorous language in the dissenting opinions. But the crux of this tension in Obergefell lies at the framing of its inquiry. In granting certiorari, the Court asked the litigants to address their issues within the Fourteenth Amendment. Thus, petitioners latched onto the ongoing successes in marriage equality to argue more consistently for extending the existing fundamental right to marriage to same-sex couples. Contrariwise, respondents insisted that the litigation involved the ongoing creation of a new fundamental right to same-sex marriage that had no consensus amongst the states.
Such differing views are taken up respectively by the Obergefell majority and dissents. Kennedy’s decision resolves the marriage controversy by extending to same-sex couples the already-existing fundamental right to marry under the Fourteenth Amendment. Meanwhile, the dissenters—Roberts, Scalia, Thomas, and Alito—vigorously insisted that petitioners were seeking constitutional creation of a new and specific fundamental right to same-sex marriage.
For the majority, extending the existing fundamental right to marry resulted in an opinion with broad emotive rhetoric that consequently seemed to upstage the doctrinal gestures. If the fundamental right to marriage ought to be available to same-sex couples, Kennedy needed to demonstrate justification. Accordingly, he dramatized justification by creating a narrative of exclusion through use of animus and human dignity concepts that had appeared either separately or together in his previous gay rights Supreme Court opinions. By entwining the two concepts into an anti-stereotyping principle that frames the narrative of marriage exclusion, Kennedy describes how the exclusion was borne from a prejudicial animus that led to indignities against same-sex couples. In fact, the way in which Kennedy phrases the historical reason for exclusion unveils a bias against same-sex relationships because the traditional belief was “it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.” By contrast, from petitioners’ perspective, this rationale was unfounded because they only sought marriage to bolster “the enduring importance of marriage” out 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.”
In using animus and dignity to further his narrative to support same-sex right to marry, Kennedy also humanizes marriage exclusion through personal accounts from the petitioner’s private lives. The most gripping example involves the one from petitioner Obergefell where Ohio state’s refusal to recognize his out-of-state marriage and his now deceased spouse, Arthur, relegates them to “strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time.’ ” The rhetoric is heightened but not doctrinal. The personified injustice provokes collective outrage as it centers on why this animus-filled exclusion violates human dignity, leading the opinion to become much more emotionally resonant. Because the majority is not creating a new fundamental right, but extends an existing one, Kennedy’s rhetoric resonates with decisions in equity, relying on principles—which he does with concepts such as dignity, animus, and autonomy—rather than decisions at law.
By contrast, the Obergefell dissents are seemingly more grounded in law, if only because they see the case as creating a novel right to same-sex marriage. This narrower perspective demanded a more logic-based, erudite rhetoric. Chief Justice Roberts was not subtle when he attacked the majority for creation of this new right, arguing substantively that such a right was not deeply-rooted in our nation’s history and criticizing procedurally Kennedy’s supposed creation of the new fundamental right as an act reminiscent of now-defunct Lochner. By framing the issue similarly, Justice Thomas uses logic to articulate his dissent—except he perceived the alleged creation of the new right to same-sex marriage as anathema to due process jurisprudence, which, he argues, should adjudicate only violations of negative liberty where freedom was deprived by governmental action. Since Thomas frames the issue as an attempt to create a new fundamental right, he argues there could not be any governmental action against it so far and thus no rights were deprived. Justice Alito argues that the majority’s supposed creation of a new fundamental right drives against the democratic process because the legislature and the public should dictate such creation, not a judicial counter-majoritarian act. The logic, history, and politics of the dissenters are rigorously articulated and rely more on doctrine than Kennedy’s principled but humanistic majority decision. But by framing the issue too narrowly at the outset, the dissenters misconstrued it. What logical and doctrinal arguments followed—however intellectual—originated from a false premise. As a result, the dissents do not challenge Kennedy’s opinion in any logical way, they are just legalistic.