Some of you might find this of interest. Reactions and critiques encouraged, as always.
http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html *The Remarkable Disappearance of State Justifications in Obergefell* Marty Lederman Over at the *Slate* "Breakfast Table," I have a post <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html> describing the handful of biggest surprises in what was in fact (or so I argue) a Supreme Court Term in which the Justices generally acted according to predictable form. One of the most remarkable aspects of the Term, I argue there, is what the Court *didn't* do in *Obergefell <http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>*--namely, devote much attention at all to the states' asserted justifications for excluding same-sex couples from the institution of civil marriage. That lacuna was no mere oversight--it was a function of the fact that the articulated justifications were threadbare, and that any legitimate justifications were virtually nonexistent. For that reason, I argue, the impassioned opinions of the dissenting Justices will have very little traction in the years to come--they elide the critical point--and the Court's judgment will, in short order, be very widely embraced as self-evidently correct. To be sure, there is, and will remain, a substantial minority of Americans who oppose SSM. But the reasons they do so--primarily, moral disapproval, biblical injunction, anxiety about homosexuality, and occasionally even animus--are unavailable to the states as legitimate justifications; and therefore it's understandable that those justifications--the *actual *grounds for state discrimination--do not even make an appearance in the *Obergefell* opinions. Here's a slightly amended version of the *Obergefell *portion of my *Slate * post: For more than a dozen years, in the scores of cases challenging marriage laws going back to *Goodridge <https://scholar.google.com/scholar_case?case=16499869016395834644&hl=en&as_sdt=6&as_vis=1&oi=scholarr>* and beyond, the briefing, arguments, and written decisions had been dominated by two questions: *First*, is discrimination on the basis of sexual orientation, like sex discrimination, subject to “heightened scrutiny” (in which case the denial of same-sex marriage would certainly be unconstitutional)? *Second*, if not--if "rational basis" review is applicable--what are the state interests supporting denial of same-sex marriage, and do they satisfy even the very deferential “rational-basis” test? Lawyers, judges, clerks and commentators expended thousands upon thousands of hours on these questions; if I had to guess, I’d say they consumed upward of 80 percent of the time, effort, and resources in the marriage cases over the years, including in *Windsor* and *Hollingsworth* two terms ago, and in *Obergefell* and its companion cases this year. The 90-plus pages of the Justices’ opinions in *Obergefell* don’t mention the first question (the proper standard of review for discrimination on the basis of sexual orientation) at all—not even to reserve it. That's a significant failing of the dissenting opinions, as I explain below. But it's not so surprising an omission in the majority opinion; I certainly didn't think Justice Kennedy would issue a ruling on the standard-of-review question, given that it was sufficient for him simply to hold that the marriage laws do not pass rational-basis muster (in conjunction with his substantive due process ruling). What *is *truly shocking, however, is that the various opinions barely even allude to the states’ asserted interests and whether they are sufficient to satisfy rational-basis review! Let's start with the majority opinion. Justice Kennedy announces the categorical, unequivocal holdings of the court on Pages 22–23 (emphasis mine): 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*. No longer may this liberty be denied to them. *Baker v. Nelson* must be and now is overruled, and *the 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*. These holdings appear before the Court has said a single word about the four defendant states’ asserted justifications for refusing to recognize same-sex marriage. It is only *after *this passage that Justice Kennedy briefly addresses and unceremoniously rejects a couple of interests mentioned by the dissenting justices. From all that appears, however, the holdings of the Court do not depend in the slightest on whether the States’ interests might justify what would otherwise be a violation of equal protection and denial of due process. The two-ton gorilla is even more conspicuously absent in the dissenting opinions. The Chief Justice's lead dissent spends almost 30 pages bemoaning the fact that the Court has allegedly betrayed history by not leaving the question to be decided by the ordinary political process. (He neglects to mention that recent state constitutional amendments were designed specifically to cut off the ability of marriage equality proponents to alter the law through the ordinary processes of political debate.) To read the Chief’s opinion, one would think there must be very strong reasons not to upset the status quo—or, at least, that a tradition of surpassing importance is at stake. Yet he does not so much as offer, let alone defend, a single one of the justifications on which the States have relied, until, finally, this single, solitary sentence on Page 24: “The marriage laws at issue here do not violate the Equal Protection Clause,” he writes, “because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage’ ” (quoting Justice O’Connor’s concurrence in *Lawrence*). This took me aback, for two reasons. First, the Chief does not even address whether “rational basis” is the proper test; he merely assumes it. (He’s typically much more careful than that, taking care to address all significant counterarguments.) Second, and more striking still, can he genuinely believe that the “legitimate state interest” sufficient to support “preserving the traditional institution of marriage” is … to “preserve the traditional institution of marriage”? Or even (if we eliminate the obvious circularity in his formulation), that tradition, *qua* tradition (cue Tevya <https://www.youtube.com/watch?v=gRdfX7ut8gw>) is a good enough reason to deny same-sex couples the profound benefits of civil marriage—without any normative justification? (In fairness to Tevya, his asserted reasons for refusing to bless Chava's marriage to Fyedka are actually more reasonable than anything the dissenting Justices or the States in *Obergefell *were able to articulate.) The Scalia and Thomas opinions likewise inveigh mightily against the court’s profound “threat to American democracy” and “other aspects of our constitutional order” … without offering a single reason why the discriminatory results of that historical order might be remotely justifiable, or even normatively attractive. By contrast, Justice Alito at least *mentions* two purported justifications for restricting marriage to opposite-sex couples. One is “to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.” The other is to avoid the risk of the unknown: “No one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.” Justice Kennedy makes short shrift of these two justifications, which is just about what they deserve.* There is an explanation, of course, for this disconnect between the gargantuan efforts expended on the question of state interests in the litigation and the virtual absence of any such discussion in the *Obergefell* opinions of the Justices--namely, that the principal *real* reason that many states have prohibited same-sex marriage is simply because their legislators and/or their constituents morally disapprove of, or are deeply discomfited by, homosexuality. But discomfort, anxiety, and a lack of understanding obviously are not valid justifications for the discrimination at issue here. And the Court’s decision in *Lawrence *took off the table the ability of states to invoke simple moral disapproval. Without resort to those *actual *justifications—as well as religious justifications upon which the civil state cannot rely—there’s simply nothing left on the state interest side of the equation. And thus, *whatever* one’s views might be on the great issues that divide the justices (substantive due process and *Glucksberg*, the meaning of “liberty” in the Due Process Clause, the proper scope of judicial review, etc.), a state's refusal to recognize and license same-sex marriage simply cannot stand for a very simple reason—namely, that there’s no rational, let alone good, reason for such a denial. Which is why, for all the *sturm und drang* of the dissenting opinions—their clarion call to arms in the service of great American ideals—it is very unlikely they will find much of a sympathetic audience in the years to come. As the Bard says, when you’ve got nothing, you’ve got nothing to lose. One further word on this important point about the absence of legitimate state interests: Unlike Judge Posner <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_gay_marriage_john_roberts_dissent_in_obergefell_is_heartless.html>, I don’t think these actual, *sub rosa* reasons for traditional state laws limiting marriage—moral disapproval, biblical teachings, anxiety about homosexuality, etc.—necessarily equate to “bigotry,” akin to the motives underlying our ugly history of race discrimination. (Of course there is *some *bigotry against LGBT individuals; but I don't think that explains the entirety of the opposition.) And thus I don’t find it very useful for influential figures such as Judge Posner to put the conversation in those terms, or to assert (as he does) that *any *"gratuitous interference in other people’s lives is bigotry." This quick move to name-calling unfortunately plays into the feverish--and I think unwarranted--alarms of the dissenters that same-sex marriage opponents themselves will shortly be treated as despicable social outcasts. Justice Kennedy, to his credit, goes out of his way to disclaim and discredit the notion that same-sex marriage opposition is necessarily rooted in bigotry and that its adherents ought to be shunned: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here, " he writes. "The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” _______________________ * As to the latter, see pages 23-26 of the majority opinion, which echoes the stirring closing of the Solicitor General's oral argument (audio <http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1> at 39:45): What the Respondents are ultimately saying to the Court is that with respect to marriage, they are not ready yet. And yes, gay and lesbian couples can live openly in society, and yes, they can raise children. Yes, they can participate fully as members of their community. Marriage, though, . . . not yet. Leave that to be worked out later. . . . But what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment *now*. And it is emphatically the duty of this Court, in this case, as it was in *Lawrence*, to decide what the Fourteenth Amendment requires. . . . [I]n a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, . . . it is simply untenable--*untenable*--to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals. Gay and lesbian people *are* equal. They deserve the equal protection of the laws, and they deserve it *now*. And as to the former justification, Justice Kennedy writes (pp. 26-27): The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See *Kitchen v. Herbert*, 755 F. 3d 1193, 1223 (CA10 2014) (“[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples”). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.
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