'Celebrate today's decision' argues Chief Justice Roberts, but do not celebrate Constitution

On June 26, 2015, a 5-4 majority of the U.S. Supreme Court ruled in Obergefell v. Hodges that states may not limit marriage to opposite-sex couples. Justice Kennedy, in an opinion joined by Justices Breyer, Ginsburg, Kagan and Sotomayor, declared same-sex couples are protected by the due process and equal protection clauses of the Fourteenth Amendment. The decision invalidates all state constitutional and statutory defense of marriage provisions and requires marriage licenses to be issued without regard to sexual identity. The consequences of this decision are monumental not only for the individual litigants and ardent advocates on both sides of the marriage debate, but also for the nation as a whole. In pronouncing the right to same-sex marriage as a new, fundamental, constitutionally protected right, the court redefined not only marriage, but the due process clause as well.

The constitution protects certain specific rights, such as free speech and trial by jury, but the due process clause is more general; it prohibits the government from depriving persons of the undefined rights of “life, liberty, or property, without due process of law.” The clause often is interpreted as requiring certain procedural safeguards, such as notice and an opportunity to be heard, but it also has been used with varying results to proclaim specific “substantive” due process rights. In Obergefell, the Supreme Court announced a substantive due process right to same-sex marriage.

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Such a far-reaching declaration is judicially risky. As Chief Justice Roberts points out in his dissent, “The Court first applied substantive due process to . . . invalidate the Missouri Compromise on the ground that legislation re­stricting the institution of slavery violated the implied rights of slaveholders. Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, . . .this Court invalidated state [health and safety] statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.”

Justice Kennedy’s majority opinion recognizes the intrinsically undemocratic nature of expanding constitutionally protected rights by judicial fiat, but justifies this extraordinary action by building on previous Supreme Court rulings in Griswold v. Connecticut (1965) (declaring a right of marital privacy to overturn anti-contraception laws), Loving v. Virginia (1967) (recognizing a fundamental right to marry to overturn anti-miscegenation laws), and Lawrence v. Texas (2003) (recognizing the right to engage in sexual conduct to overturn anti-sodomy laws). The decision offers a four-part justification for its revolutionary expansion of marital rights: (1) “personal choice regarding marriage is inherent in the concept of individual autonomy;” (2) marriage is “a two-person union unlike any other in its importance to the committed individuals;” (3) “protecting the right to marry safeguards children and families;” and (4) “marriage is a keystone of our social order.” The majority opinion also expresses an equal protection clause right to same sex marriage that is based on the requirement that government distinctions be at least rationally based. The case could have been decided on the basis of the equal protection clause alone, but Justice Kennedy chose instead to link the two protections. “Each concept—liberty and equal protection—leads to a stronger understanding of the other.”

The ramifications of this decision will be far-reaching. As the dissenters point out, no one knows how this new constitutional right will impact the religious rights of those opposed to same-sex marriage. For the time being, however, the litigants, who have very compelling personal stories, and the millions of same-sex couples who yearn for full acceptance, may, as Chief Justice Roberts suggests, “celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the oppor­tunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

Ellen K. Boegel, an associate professor of legal studies at St. John’s University in New York, clerked for the United States Court of Appeals for the Second Circuit.

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