A few words on Obergefell and the countermajoritarian tendency

A great deal of electronic ink has been spilled, already, about the Obergefell decision, and I hesitate to add more noise to what is already a very noisy debate. There's a lot of pretty complex constitutional law in play, and many prisms through which to view the case. But perhaps because I've been re-rereading my Federalist Papers of late, in connection with some Internet governance work I'm doing, it does seem to me that celebrations are most definitely not called for, and that, like a lot of bad constitutional law, this one will come back to bite us.

I should say that I'm delighted that, as of today, we live in a country where there are no more laws on the books prohibiting same sex marriage. I'm considerably less delighted that we arrived there because 5 Justices of the Supreme Court have so decided the matter.

We've been here before; the parallels to Roe v. Wade are pretty close, and I suppose that how one feels about the Obergefell case mirrors pretty closely how one feels about Roe. I'm one of those people who thinks Roe was a serious constitutional mistake, and that its consequences—for women's reproductive rights, among many other things (including the general state of our political culture)—have been terrible. States in 1973 were already loosening restrictions on abortion (just as states have been loosening up marriage restrictions over the past few years), and the movement was pretty clearly picking up steam, state-by-state. There would have been lots of sporadic fighting over the ensuing years, as one state after another started to re-think its abortion laws, with some victories and some losses. But Roe galvanized the opposition—there was no "Christian Right" before Roe—and by constitutionalizing the question singlehandedly made it a national issue that has been consuming us for 40 years. It polarized the debate; millions of people with sincere and strongly-held views on one side of the debate and who felt they at least had a voice in that debate were told, in effect, to shut up by seven Justices of the Supreme Court, that their view of the world was no longer admissible; they became, understandably, angry, and they have been taking it out (mostly on women) ever since.

Roe was a hollow victory for women's reproductive rights, and I fear that Obergefell might prove to be one as well. We'll never know what the world in 2015 would look like without Roe v Wade, but I'm reasonably sure that women—and especially poor women—in, say, Texas would have had greater access to abortion services in that alternate world than in ours.

As one respected commentator put it 20 years ago:

Judges play an interdependent part in our democracy. They do not alone shape legal doctrine but . . . they participate in a dialogue with other organs of government, and with the people as well. . . . Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.

The 7-2 judgment in Roe v. Wade declared "violative of the Due Process Clause of the Fourteenth Amendment" a Texas criminal abortion statute that "except{ed} from criminality only a life-saving procedure on behalf of the {pregnant woman}." Suppose the Court had stopped there, thus declaring unconstitutional the most extreme brand of law in the nation, and had not gone on . . . to fashion . . . a set of rules that displaced virtually every state law then in force? Would there have been the 20-year controversy we have witnessed, reflected most recently in the Supreme Court's splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, I believe . . . might have served to reduce rather than to fuel controversy . . . .

The Roe decision might have been less of a storm center had it both homed in more precisely on the women's equality dimension of the issue and, correspondingly, attempted nothing more bold at that time than the mode of decision making the Court employed in the 1970s gender classification cases.

Roe v. Wade . . . invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators' court. In 1973, when Roe v. Wade was issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures "toward liberalization of abortion statutes." That movement for legislative change ran parallel to another law revision effort then underway—the change from fault to no-fault divorce regimes, a reform that swept through the state legislatures and captured all of them by the mid-1980s.

No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court's delineation of abortion regulation still permissible. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction . . . Roe v. Wade, on the other hand, halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.

That commentator was now-Justice Ruth Ginsburg, in her remarkable Madison Lecture in 1993 (available excerpted here, and in full text here). And I think the last 20 years have proven the wisdom of what she wrote.

A Supreme Court that has the power to strike down state laws prohibiting marriage between persons of the same sex is also (and necessarily) a Supreme Court that has the power to, say, strike down state laws allowing marriages between persons of the same sex, and that's not a Supreme Court that I like.

So while I think his prose is (as it often is) a bit overblown, I think Justice Scalia hit the nail quite squarely on the head on this one:

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of govern-ment is supposed to work.

This decision is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices 'reasoned judgment.' A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.