Obergefell v. Hodges: Both Sides Get it Wrong

            On days like these I remember my years in law school.  “Divorce yourself from the policy. Focus on the logic of the law,” they’d tell us.  “Courts are not legislatures.  Courts are the servants of the democratic process.”

            After reading the 106 pages the Supreme Court’s majority and dissenters produced in this now landmark and overdue resolution of the same sex marriage question, I can’t help but wonder if the august lawyers who now sit on the high bench have forgotten everything they’ve learned.

            This was not a hard case, and it didn’t merit all of the heat that came off of the bench from all sides.  This was not the usurpation the dissenters bemoan.  And it also wasn’t the occasion for soaring declarations about liberty, freedom and human dignity that infuse the majority opinion.

            Instead, this was a case that required quiet logic and almost nothing new. The case asks about disparate treatment under law. It is a narrow question easily answered.

            Under standard equal protection clause analysis, the states are allowed to make distinctions between people and situations.  In most cases involving economic regulation that don’t involve distinctions based on morally irrelevant criteria such as race or religion, for example, states have wide discretion.  In one case famous in all law school constitutional law classes, the Supreme Court even sustained the use of nepotism in granting tugboat licenses as s reasonable means of promoting safety.

            But in cases that do involve distinctions based on morally irrelevant criteria, the Supreme Court applies a much more stringent test.  Under that test, if the state wants to use morally irrelevant criteria, the Court requires a damned good reason.  And no matter how much you struggle, there just isn’t one that permits a state to treat same sex couples differently from opposite sex couples.

            At best, states can make post hoc rationalizations about their treatment of same-sex couples.  The main one—encouraging the stable families for children—just doesn’t cut it.  States routinely give out marriage licenses to people who are no longer physically capable of reproducing. In any event, if that were the main reason, wouldn’t you expect states to test everyone applying for a marriage license to see if their union could produce offspring?

            Everyone knows why same sex marriage is not permitted in some states. For some people in those states, the thought of what might go on between two naked men or two naked women in a bed is just plain icky, and for centuries, those people have been holding the legislative pen.  But icky is not a reason for the state to deny benefits to people. 

            Gay people seek sexual partners of the same sex because they were born that way. For most people, sexual preferences are immutable psychological characteristics. The fact that gay people are attracted to people of the same sex and want to form families with them is as morally irrelevant to any conceivable state purpose as is the color of a person’s skin.

            The dissenters in this case are in high dudgeon because the majority failed to address this case on the easiest grounds.  The majority spent most of its energy discussing the case as a violation of due process and got itself caught up in discussions of fundamental rights and human dignity.  That gave the dissenters the ability to play the democracy card.  “Do we really want to entrust our constitutional order to the whim of nine lawyers from Harvard and Yale? Doesn’t our system of government entrust major policy questions to the ballot box?” they ask.

            In most cases, we do want majorities to decide major questions of public policy (such as, ahem, whether our government should insure that everyone has health insurance).  But to read the majority’s opinion, which relies on due process analysis and not equal protection analysis, does raise a legitimate concern about precedents allowing the Supreme Court to run amok as it did in Dred Scott and a number of cases that invalidated major New Deal legislation.

            Had the majority instead relied on equal protection analysis, the reply to the dissenters would be easy. We have always taken some issues out of the hands of democratic majorities because we simply can’t trust democratic majorities to be fair to unpopular minorities such as African-Americans, minority religious groups and homosexuals.  And that is precisely why we have a Supreme Court that operates beyond democratic control.

            There isn’t a way that our country will avoid a political backlash for this opinion.  To be fair, there isn’t a way that this case wouldn’t have produced a backlash, even if it had come out the other way. But we would all have been better off if the Court had presented us with a simple, logical, straightforward rationale couched in the most unemotional, apolitical language possible.