Obergefell – The Majority Opinion – The Due Process Argument

My goal is writing this series of posts on Obergefell is to share what I am thinking about the decision and what its effects might be.  I definitely don’t have a better understanding of the law in this area than the Supreme Court.  And even they can’t agree on what law applies to this issue and how it applies.    I hope that you will read these posts, read the decision, think about its implications and leave questions and comments.

After setting the historical background discussed in the prior post, Justice Kennedy begins the Court’s legal analysis.  It is here that I had my first question about the structure of the argument that Justice Kennedy is forming.  Is his introduction the background for the decision or the foundation for the decision?  If it is a background, then, like the background in a painting, its purpose is to put the main subject in context, but it doesn’t provide critical information.   I think the introduction is more foundation than background.  He seems to mix together the developing social theories on marriage and sexuality with past Supreme Court case law like he is mixing concrete.   The parts of law and sociology that are permitted into the foundation are filtered by the “principles” set out in the introduction.  I say this because the points he raises in the introduction appear again in the body of the decision.

The Due Process Argument

[As I write these posts, I will be quoting sections of text from the decision.  Rather than using block quotations, which would be formally correct, I will put the quoted text in blue and use quotation marks.]

Justice Kennedy begins section III of the majority opinion.

“Under the Due Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of life, liberty, or property, without due process of law.’  The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights [the decision cites the Griswold case here]. In addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs”  The 1965 Griswold case cited by the court struck down a state law forbidding a married couple to use birth control.   At the time, Griswold was seen as an expansion of the Due Process clause.  But, Griswold, was an expansion that most American’s accepted.  I don’t know that American married couples knew they had a constitutional right to use birth control in 1965.  But, I am guessing they welcomed the information as good news.

Justice Kennedy uses the Griswold case as an example of when the Court identified a new fundamental right that had not previously been recognized.  Justice Kennedy goes on to say, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.  That responsibility, however, ‘has not been reduced to any formula.  Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”  To paraphrase, just as the Supreme Court identified the previously unknown right to use birth control,  it has an ongoing duty to keep finding previously unidentified rights.  Further, there is no magic formula for how these rights are determined, but the Court must use its best judgment to figure them out.  And, when the Court has found a fundamental right, the State must accept the right as being constitutional and, therefore, invalidating any state law that conflicts with it,

The Court then explains that it has, over time, developed some tenets. or guidelines, of constitutional interpretation that it uses to identify these previously unseen rights.  When these tenets are applied to marriage generally, the Court has found a constitutional right to marry.  The Court has found that the right to marry cannot be “burdened” (prevented) for certain reasons, for example, because a father is behind in his child support payments or because one of the people wanting to be married is in prison.  But, the Court, like many institutions, had “made assumptions [about marriage] defined by the world and time of which it is apart,”  and in 1972 found that the exclusion of same-sex couples from marriage did not present a substantial federal question.  In other words, in 1972,  the Supreme Court didn’t think that applying the above-referenced tenets of constitutional interpretation to the topic of same-sex marriage would yield any previously undiscovered rights.

But, as Justice Kennedy explains, the trail didn’t end in 1972, “[s]till, there are other more instructive precedents.  This Court’s cases have expressed  constitutional principles of broader reach.  In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond [he means “marriage”].  And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected.”  Justice Kennedy is referring here to the four principles of marriage that will follow next and round out the Due Process section of his argument.  He says that, when these four principles are applied to same-sex marriage, “[t]he analysis compels the conclusion that same-sex  couples [emphasis added by me] may exercise the right to marry.  The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples [emphasis added by me again].”

As we move into a discussion of these four principles in the next post, there are two questions to ask yourself.  The first is whether you agree that the Court has identified principles that are central to our definition of marriage.  I am not a constitutional law scholar.  You probably aren’t either.  But, you and I can both read these principles and ask if they make sense to us.  The second question to ask yourself is whether the four principles necessarily apply only to “couples.”  Is Justice Kennedy suggesting that there is something mystic  or special about two people in a marriage relationship?  Or, is it just that the question before the Court, and therefore the only question the Court can answer, is limited to couples?

I have tipped my hand, so this is a spoiler alert.  You can read the Court’s holding at the bottom of page 22 of the Majority Opinion.  Did you find the word “couple?” in the Court’s conclusion that marriage is a “fundamental right”?  I didn’t either.  The word “couple” is used in the two holdings that follow because, in this case, the Court was only addressing the question of whether there was a constitutional right that applied to couples.  So, what happens when the Court gets a case asking if the fundamental right to marriage is available to polygamists?  Stay tuned for Justice Roberts dissenting opinion.

Please leave comments and questions.

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