By S. Ernie Walton, J.D.
Associate Director, Center for Global Justice, Human Rights and Rule of Law; Regent University School of Law
Almost three months after the dust from Obergefell has settled, one thing is clear: conservatives are crying foul primarily over Obergefell’s usurpation of the democratic process. The “debate over same-sex marriage displayed American democracy at its best,” we are told, and the majority in Obergefell was dead wrong to end it. This was Obergefell’s cardinal sin from the conservative perspective.
Obergefell is undoubtedly a threat to democracy, and conservatives are correct to make Americans aware of this. But the conservative commentary’s focus on Obergefell’s threat to democracy has been misguided. Solely attacking the majority opinion on the democracy angle fails to address Obergefell’s actual constitutional flaw, and, in fact, may perpetuate it. Consider Justice Kennedy’s statement as to why democracy (allegedly) played no part in the Court’s decision: “It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.” Conservatives should wholeheartedly endorse this statement, at least in isolation. Justice Kennedy is affirming that the function of an Article III judge is to uphold the Constitution, not allow democracy to prevail at all costs. Indeed, if 90% of Californians passed a proposition banning the use of guns “in any dwelling,” conservatives would demand that a federal judge strike the law down as unconstitutional, despite what democracy “had to say” on the issue. Or if a unanimous Congress passed a law requiring all D.C. residents to attend church every Sunday, the law should be thrown out before it even arrived on the bench. The First Amendment settled that issue long ago. The point is simple: in our Constitutional republic judges are bound to uphold the Constitution, not democracy. (And of course by upholding the Constitution, democracy, at least the way the Founders envisioned it, will also flourish.)
And therein lies the sticking point: what does it mean to “uphold the Constitution”? This is where Justice Kennedy’s opinion goes awry and makes a complete mockery of the Constitution and the nature of law itself. Despite acknowledging that the original meaning of the Fourteenth Amendment never could have granted a right to same-sex marriage and that history and tradition provided no support for this “right” either, Kennedy goes on to declare: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” In other words, the Fourteenth Amendment means whatever five members of the Supreme Court say it means at any given time. This is the nonsense conservatives should be attacking. Whether an adherent of originalism or not, Justice Kennedy’s decision contains not one iota of a neutral and general principle of law. Without such a principle, the decision cannot rightly be called law. Herbert Weschler articulated this in his 1959 law review article, Toward Neutral Principles of Constitutional Law:
A principled decision, in the sense I have in mind, is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government or of a state, those choices must, of course, survive. Otherwise, as Holmes said in his first opinion for the Court, “a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions . . . .”
Specifically, Kennedy’s substantive due process analysis ignores the text of the Constitution, the Court’s precedent, and basic presuppositions about the meaning of “liberty” under the American experiment. And his equal protection analysis (or lack thereof) is even more puzzling, bearing no resemblance to the Court’s usual method of deciding claims under the Equal Protection Clause by identifying the class, the corresponding level of scrutiny for that class, and asking “whether the classification the government is using is sufficiently related to the goals it is pursuing.” In other words, Kennedy’s majority opinion finding a fundamental right to same-sex marriage contains no neutral principles of law and makes the Constitution a pure partisan of the pro-LGBT ethical opinion.
This should cause lawyers, law professors, and everyone else in favor of the rule of law to mourn. The mourning should be all the greater because everyone in the legal academy knew that Justice Kennedy would pen an unprincipled opinion declaring a constitutional right to same-sex marriage. William & Mary Law Professor Jim Dwyer, a strong proponent of same-sex marriage as a matter of policy, predicted this exact thing in his 2015 article, Same-Sex Cynicism and the Self-Defeating Pursuit of Social Acceptance Through Litigation:
“[E]veryone in legal academia fully expects that Justice Kennedy will declare victory for the Movement in a majority opinion devoid of analytical structure, careful logic, or reference to general principles, lest anything he says be used in another case for a result he does not like.” After reading Obergefell, Professor Dwyer sounds more like a prophet than a lawyer. Or is it just that the Constitution and the Court’s precedent no longer mean anything? These are ominous words for rule of law and the American legal system as a whole.
But this Essay is not only about critiquing the majority’s legal reasoning, although it’s hard to stay off that track. It’s about critiquing the conservative response to the majority opinion. And to do that, I turn to the dissenting opinions of Justice Thomas and Chief Justice Roberts. As expected, Justice Thomas’s dissent focused solely on refuting the majority’s legal analysis (or lack thereof). Justice Thomas magnificently destroyed what little legal analysis can be found in the majority opinion and expounded how the Fourteenth Amendment could never grant a right to same-sex marriage. In contrast, Chief Justice Roberts focused most of his dissent on the majority’s usurpation of the democratic process. While Chief Justice Roberts does criticize the majority opinion for lacking any neutral principle, he cites Lochner time and again, signaling his view that the majority’s fundamental error was its usurpation of democracy, not its interpretive method.
Most of the conservative commentary rings more like Roberts’s opinion than Thomas’s. Consider Kelly Fiedorek’s op-ed, The Supreme Court’s Gay-Marriage Ruling Is a Huge Blow to Democracy, in the Washington Post. According to Ms. Fiedorek,
What hung precariously in the balance was the future of our democratic system of government — whether Americans have the freedom to democratically address the most pressing social issues of the day and, ultimately, whether their votes matter. It is this aspect of the high court’s decision that should capture every American’s attention and concern, regardless of one’s opinion on the definition of marriage.
Ms. Fiedorek and other conservatives may defend their focusing on the democracy angle on the ground that conservatives have lost the battle over how to interpret the Constitution. Therefore, playing the democracy card is the only way to win public opinion. First, this is false. Conservatives have by no means lost the battle over how to interpret the Constitution. Indeed, history is playing a more and more prominent role in major Supreme Court cases every year. In 2010, now Virginia Supreme Court Justice Arthur Kelsey published an article, The Resurgent Role of History in Modern U.S. Supreme Court Cases, that demonstrated how history (i.e., and originalist method of interpretation) was becoming the decisive factor in many high-profile U.S. Supreme Court cases—and this even across the political spectrum. The battle over how to interpret the Constitution has hardly been lost, and it’s not a battle that conservatives can abandon.
Second, attacking Obergefell’s judicial philosophy as opposed to its anti-democratic result is critical to preserving the Constitution and ensuring that conservatives nominate judges they actually want on the bench. No one explains this better than esteemed law professor Randy Barnett. Professor Barnett articulates an important distinction between “judicial constraint,” whereby a judge is constrained by the original public meaning of the Constitution, and “judicial deference,” whereby a judge is committed to deferring to the democratic process as it expresses its will through the political branches. Elevation of judicial constraint will produce a Justice Thomas as a nominee. Praise for judicial deference will produce a Chief Justice Roberts as a nominee. Do conservatives need more evidence for why directly attacking Obergefell’s interpretive method and not its usurpation of the democratic process is vital?
About the Author:
Outside of his work at Regent, Ernie served as a law clerk to the Honorable D. Arthur Kelsey of the Virginia Supreme Court. He also practiced law in Southern California at Tyler & Bursch, LLP, where he specialized in civil litigation and business law. He also simultaneously served as an associate attorney at Advocates for Faith & Freedom, a non-profit law firm that specializes in protecting religious freedom. Through Advocates, Ernie represented various churches in RLUIPA cases and helped defend pastors who were arrested for evangelizing on public property, among other things.
The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.