A great decision on same-sex marriage - but based on dubious reasoning

(REUTERS/Joshua Roberts)

Today's Supreme Court decision on same-sex marriage is a great result, but based on dubious reasoning. It is undoubtedly a momentous occasion for gays and lesbians around the nation. In a comparatively short time, they have moved from being a widely despised minority whose intimate relationships were criminalized in many states, to full marriage equality around the country.

For gays and lesbians seeking the right to marry and for many of us who have supported their cause, the result in today's case matters more than the reasoning. But the Court's legal reasoning also deserves attention, both because it is important in its own right, and because it establishes a precedent for future cases. Unfortunately, much of Justice Anthony Kennedy's majority opinion is based on dubious and sometimes incoherent logic.

Gay rights advocates have advanced several different rationales for a constitutional right to same-sex marriage. In my view, the strongest is that laws banning same-sex marriage discriminate on the basis of sex, much like laws banning interracial marriage discriminate on the basis of race - a position defended in an amicus brief I coauthored with Prof. Andrew Koppelman. But some of the other rationales for a right to same-sex marriage are also plausible, particularly the theory that laws banning it engage in unconstitutional discrimination against gays and lesbians.

Unfortunately, Justice Kennedy's majority opinion doesn't clearly endorse any of the various arguments previously advanced for a right to same-sex marriage, even as it to some degree nods at all of them. The result is a far from satisfying majority opinion.

I. The Due Process Clause.

Kennedy first emphasizes that the right to marriage is a "fundamental right" protected by the Due Process Clause of the Fourteenth Amendment. The Court has indeed long held that marriage is a fundamental right, and few would dispute Kennedy's claim that the "institution [is] at the center of…many facets of the legal and social order." But the standard test for identifying a fundamental right under the Due Process Clause is that the right must be "deeply rooted in this Nation's history and tradition." It's hard to argue that the right to same-sex marriage is deeply rooted in this way, given that it did not exist in any state until 2003.

Kennedy's response to this fairly obvious point is that "[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians." This is true. But the reasoning of the previous decisions Kennedy refers to was either based in large part on the Equal Protection Clause (as in the case of interracial marriage), or focused on a right that at least was not so universally denied as the right to same-sex marriage (e.g. - in the case laws criminalizing intimate homosexual relations).

Kennedy's analysis of the Due Process Clause issue also tries to cabin the scope of his reasoning by emphasizing that the fundamental right to marriage is limited to a "two-person union unlike any other in its importance to the
committed individuals." This appears to foreclose the possibility that the right to marriage includes polygamous unions. But the basis for this limitation is not clearly explained. If fundamental rights are not "defined by who exercised them in the past," then why should they be defined by the number of people involved in the union in question?

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II. Linking Due Process and Equal Protection.

Kennedy, however, does not rely on Due Process Clause reasoning alone. He instead tries to connect the Due Process Clause with the Equal Protection Clause, arguing that the two are inextricably linked:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other.

In this case, due process and equal protection are fused because a fundamental right is being denied in part because of invidious discrimination against gays and lesbians:

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.

Much of this is surely true as a matter of historical fact. The longstanding exclusion of gays and lesbians from the right to marry was surely linked to the severe prejudice against them, and the many injustices they were subjected to. It is also true that exclusion from marriage harms gays and lesbians in a variety of ways.

But, usually, even laws that harm people severely get only minimal "rational basis" scrutiny under the Equal Protection Clause, a highly permissive standard of review that laws banning same-sex marriage could likely pass. Discriminatory laws are only subject to a higher level of scrutiny if they are based on a "suspect classification" such as race or sex. Gay rights advocates, myself included, have long argued that laws banning same-sex marriage do in fact discriminate on the basis of sex, and should be invalidated for that reason. Justice Kennedy hints at this argument when he analogizes laws banning same-sex marriage to "invidious sex-based classifications in marriage [that] remained common through the mid-20th century. These classifications denied the equal dignity of men and women." But he ultimately does not endorse it. Alternatively, he could have embraced the more recently popular argument that sexual orientation should be considered a suspect classification. Kennedy flirts with this possibility, as well, but does not embrace it either.

In previous gay rights decisions, such as United States v. Windsor (2013), Kennedy has suggested that discriminatory laws should get a kind of heightened rational basis scrutiny if they were in large part motivated by animus against gays and lesbians. Many observers, myself included, thought that he might adopt a similar rationale in today's decision. No one can doubt that anti-gay animus is a major factor in opposition to same-sex marriage, even if it does not extend to all opponents. Remarkably, however, the word "animus" does not even occur in the 100 pages of majority and dissenting opinions in today's case. Kennedy notes the history of anti-gay prejudice and discrimination, but does not claim that it justifies applying a higher level of scrutiny. Indeed, he doesn't really make clear what level of scrutiny applies at all.

Ultimately, Kennedy does not clearly conclude that either the Due Process Clause or the Equal Protection Clause by itself creates a right to same-sex marriage. Rather, his claim is that the combination of the two somehow generates that result, even if neither can do so alone. If a sufficiently important right (Due Process Clause) is denied for discriminatory reasons (Equal Protection), then the Fourteenth Amendment has been violated. However, both the criteria for what makes the right important enough, and the criteria for proving discrimination seem extremely vague. Thus, it is difficult to tell what - if, indeed, any - implications this ruling will have for future cases. The dissenting justices, for example, argue that it might create a rationale for a right to polygamy. This seems foreclosed by the wording of Kennedy's opinion. But, as noted, above, it may not be by the logic of his reasoning.

Kennedy's opinion does make some very good points, mostly in response to standard arguments raised by same-sex marriage opponents. For example, in response to the oft-made claim that marriage is an institution that states can legitimately limit only to couples capable of engaging in raising biological children, he points out that "[a]n ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State." He also notes that gay and lesbian couples routinely raise children, and that extending marriage rights to such couples might benefit the children. He also has a solid common-sense rejoinder to those who argue that recognizing same-sex marriage will somehow devalue or discourage opposite-sex marriage, noting that "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." In addition, Kennedy effectively rebuts claims that the Court should have waited for additional deliberation to occur in state legislatures.

Overall, I can't avoid the conclusion that much of Kennedy's reasoning is dubious and flawed. This is especially unfortunate, given the reality that the Court could easily have relied on any of several stronger rationales for the same result.

That said, I will conclude by pointing out that great Supreme Court decisions aren't always based on great legal reasoning. Few Supreme Court rulings are as iconic as Brown v. Board of Education. Yet Brown notoriously failed to consider much of the relevant historical evidence, did not make clear exactly what kinds of racial discrimination by state governments are unconstitutional, and did not even clearly repudiate Plessy v. Ferguson - among other flaws pointed out by legal commentators. These flaws were genuine and some of them had harmful consequences down the road. But they do not invalidate Brown's standing as a civil rights milestone.

Obergefell v. Hodges is not quite the Brown v. Board of Education for gay rights. State-sponsored oppression of gays and lesbians today is not nearly as severe as what African-Americans endured in the 1950s. Because of the enormous progress made in recent decades, Obergefell is closer to the end of the struggle for gay rights than the beginning or even the middle. But it is a major milestone nonetheless. I suspect that is what it will be remembered for, more than its flawed reasoning.

UPDATE: Although we may not agree on the bottom line about the right to same-sex marriage, I agree with much of what co-blogger David Bernstein says in his insightful critiques of the majority and dissenting opinions.